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Whittle v. Berryhill

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

May 15, 2019

SEAN K. WHITTLE, 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, Sean K. Whittle, seeks judicial review of the Commissioner's final decision denying his application for child's insurance benefits (CIB) under Title II and supplemental security income disability benefits under Title XVI of the Social Security Act.[1]

         Mr. Whittle has filed a complaint and has requested the court to reverse the Commissioner's final decision denying him disability benefits and to enter an order awarding benefits. Alternatively, Mr. Whittle requests the court remand the matter to the Social Security Administration for further proceedings.

         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, Sean K. Whittle's, (“Mr. Whittle”), application for child's insurance benefits and SSI filed on August 12, 2015, alleging disability since September 1, 2007, due to social phobia disorder, major depressive disorder, anxiety, borderline personality disorder, acid reflux, and chronic kidney stones. AR229, 236, 266. (citations to the appeal record will be cited by “AR” followed by the page or pages).

         There are corresponding and usually identical regulations for each type of benefit. See e.g. 20 C.F.R. §§ 404.1520 and 416.920 (evaluation of disability using the five-step procedure under Title II and Title XVI). On August 12, 2015, Mr. Whittle filed his application for both types of benefits. AR17.

         Mr. Whittle's claims were denied initially and upon reconsideration. AR136, 139, 144, 151. Mr. Whittle then requested an administrative hearing. AR158.

         Mr. Whittle's administrative law judge hearing was held on November 7, 2017, by Richard Hlaudy, (“ALJ”). AR38. Mr. Whittle was represented by other counsel at the hearing, and an unfavorable decision was issued on February 5, 2018. AR14, 38.

         At Step 1 of the evaluation, the ALJ found that Mr. Whittle had not engaged in substantial gainful activity, (“SGA”), since the date of his alleged onset of disability, September 1, 2007. AR19. The ALJ reviewed Mr. Whittle's earning record and stated that his earnings in 2007, 2008, and 2009 did not exceed the minimum monthly threshold for substantial gainful activity in any of those years. AR19. The ALJ stated that a review of Mr. Whittle's earnings record showed that he had not earned income at substantial gainful activity levels on an annualized basis his entire life. AR26.

         At Step 2, the ALJ found that Mr. Whittle had severe impairments of anxiety, bipolar disorder, depression, personality disorder, and substance abuse disorder. AR20.

         The ALJ also found that Mr. Whittle was diagnosed with GERD and kidney stones, but determined they were non-severe. AR20.

         At Step 3, the ALJ found that Mr. Whittle did not have an impairment that met or medically equaled one of the listed impairments in 20 CFR 404, Subpart P, App 1 (20 CFR § 416.920(d), 416.925, and 416.926) (hereinafter referred to as the “Listings”). AR20. The ALJ found Mr. Whittle had moderate limitations in understanding, remembering, or applying information; moderate limitations in interacting with others; moderate limitations with concentration, persistence or maintaining pace; and moderate limitations in adapting or managing oneself, so did not meet a Listing. AR20-21.

         The ALJ determined Mr. Whittle had the residual functional capacity (“RFC”), to perform a full range of work at all exertional levels but had non-exertional limitations that limited him to understanding, remembering and carrying out only simple, routine and repetitive tasks, and having only occasional and superficial contact with coworkers and the public. AR21.

         The ALJ's subjective symptom finding was that Mr. Whittle's medically determinable impairments could reasonably be expected to produce the symptoms he alleged, but his statements concerning the intensity, persistence and limiting effects of his symptoms were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR23.

         The ALJ considered the opinions of the State agency medical consultants who made a non-severe finding and gave them “great weight.” AR26-27.

         The ALJ noted that the State agency psychological consultant at the initial level found Mr. Whittle had “marked” limitations in activities of daily living, “marked” limitations in social functioning, and “moderate” limitations in concentration, persistence or maintaining pace, and also found that Mr. Whittle's drug addiction and alcoholism (“DAA”) was material. AR27. The ALJ considered those opinions and rejected the finding of material DAA stating, “While it is true that the claimant had significant alcohol and drug abuse issues early on in the relevant period resulting in multiple emergency room admissions for withdrawal symptoms, they were not accompanied by evidence of mental dysregulation or decompensation and he was not hospitalized for two weeks or longer. The claimant's functioning during that period, while certainly affected by drug and alcohol usage, did not result in the increased need for mental health treatment or hospitalizations.” AR27. The ALJ afforded the opinion “little weight.” AR27.

         The ALJ considered the medical source statement completed by Mr. Whittle's treating case manager, Debby Bongers, who the ALJ noted had identified “moderate” to “marked” limitations in both Mr. Whittle's ability to maintain attention and concentration and in his ability to have social interaction, and accepted all “moderate” limits, but rejected all “marked” limitations asserting they were “inconsistent with the relatively stable mental status examination observations” noted in the case management and psychiatric treatment records, citing exhibits 8F, 22F, and 28F. AR26, 2234-36 (medical source statement).

         The ALJ considered the statement of Mr. Whittle's treating psychiatrist, Dr. Bhatara, and accepted all “moderate” limitations he identified, but rejected the “marked” limitations Dr. Bhatara had identified in sustaining attention, social interaction, and adaptation. AR26. The ALJ stated he rejected the “marked” limitations because they were “inconsistent with the relatively stable mental status examination observations” noted in the case management and psychiatric treatment records, citing exhibits 8F, 22F, and 28F.

         The ALJ stated that Mr. Whittle was no more limited than he determined in the RFC because:

The record before the undersigned establishes that the claimant had depression, anxiety, borderline personality disorder and substance abuse. The claimant's substance abuse issues are prevalent in the record warranting a finding for severity. However, they are not material to causing up to marked limitations in mental functioning. The treatment notes document numerous admissions for alcohol withdrawal symptoms and opioid drug seeking behavior early on in the relevant period. However, those emergency room admissions were of short duration and did not result in psychiatric inpatient treatment for mental decompensation. The claimant had little psychiatric treatment during the portion of the relevant period and the minimal mental status examination in the record during that time indicated he had normal functioning. More recently, as of 2014, the claimant's substance abuse habits changed to more of a binge nature. The claimant had some inpatient stays of very short duration that were not related to alcohol abuse and some that noted alcohol abuse. In those instances, the claimant's stays were of a short nature, he responded well to treatment with and without substances being a factor and was typically discharged within a day or two of admission and usually at his own request. The claimant has received case management services with consistent notations of poor hygiene and deficits of insight and judgment but otherwise normal mood, thought processes and no evidence of psychosis. Overall, the case management notes document relative stability in the claimant's functioning. Likewise, the more recent psychiatric treatment notes have documented deficits but relative stability in the mental status examination observations. The deficits registered do not rise to a marked degree of impairment. The claimant's reported activities of daily living are reduced, but consistent with the ability to perform unskilled work with reduced contact with others. The treatment notes also document issues of the claimant's truthfulness with providers and issues of malingering noted by attending providers that also weigh against the claimant's allegations. Therefore, based on the foregoing, the undersigned find [sic] the claimant is capable of performing work at all exertional levels within the limitations of the residual functional capacity assessment set forth above.

AR27-28.

         Based on the RFC determined by the ALJ and relying on the testimony from the vocational expert the ALJ first found that Mr. Whittle was capable of his past relevant work as a gas station clerk, citing DOT #211.462-010, as it is generally performed in the national economy. AR28. The ALJ cited to a disability report completed by Mr. Whittle where he reported working as a service clerk at a gas station from “March 2007 to April 2007” working 9 hours per day for six days per week and earning $7.50 per hour. AR28 (citing Exhibit 3E-4, AR268). The ALJ cited Mr. Whittle's earning record which indicated he earned $965 from Olson Oil Company (Get-n-Go) for the year 2007 and asserted that those earnings were more than the $900 minimum monthly threshold for substantial gainful activity in 2007. AR28. The ALJ cited the DOT definition of the job as having a vocational preparation (SVP) of 2, meaning it would take up to 30 days to learn the job. AR28. The ALJ stated, “therefore, the undersigned finds the claimant earned substantial gainful activity in that position for one month” and “that was sufficient time to learn the requirements of that job.” AR28.

         The ALJ stopped the sequential evaluation at Step 4 and found Mr. Whittle not disabled. AR28.

         Mr. Whittle timely requested review by the Appeals Council. AR227.

         The Appeals Council denied Mr. Whittle's request for review making the ALJ's decision the final decision of the Commissioner. AR1.

         B. Plaintiff's Age, Education and Work Experience

         Mr. Whittle was born January 28, 1986, and completed two years of college in 2006. AR229, 267.

         The ALJ identified Mr. Whittle's only past relevant work as gas station clerk, DOT# 211.462-010, asserting Mr. Whittle performed that job for one month in 2007. AR28.

         C. Relevant Medical Evidence

         1. Avera Hospital, Avera Heart Hospital, Avera Behavioral Health, Sanford Hospital and clinics, Falls Community Health and S.D. Human Services Center (in chronological order)

         Mr. Whittle was seen in the Avera emergency room on July 30, 2006, with acute hepatitis most likely due to Vicodin/Tylenol overdose with 75 Vicodin pills taken over a 5-day period. AR705. Mr. Whittle was admitted and seen for a psychiatric evaluation. He reported a history of abdominal pain related to kidney stones and had become addicted to Percocet for which he spent one month (April 27, 2006, to May 27, 2006) in rehab at Keystone. AR630, 697, 700. He reported treatment from Dr. Singh for depression and anxiety, and was taking Cymbalta, Remeron, and Seroquel. AR700. Mr. Whittle also reported being in counseling with Gretchen Starns at Sioux Valley. AR701. His GAF was assessed at 45. AR702. A mental status examination revealed that Mr. Whittle made good eye contact, his thoughts were clear and goal oriented, his attention and concentration were good, his mood was anxious, and he was guarded in discussing his stressors and his symptoms. Id. His insight and judgment were fair, but his judgment was somewhat impaired in that he did not want to involve his outpatient psychiatric providers or inform them about his hospital admission. Id. Mr. Whittle was discharged the next day. AR695.

         Mr. Whittle was seen in the Avera emergency room on September 5, 2006, worried about the condition of his liver due to some minor nausea, but his liver tests were almost normal. AR686. An examination revealed that Mr. Whittle was alert, oriented, pleasant, and cooperative, his neurological examination was grossly intact, and he was mildly to moderately anxious. AR686. However, he demonstrated significant amounts of anxiety and he was treated with Ativan, which significantly improved his symptoms. AR687.

         Mr. Whittle was seen at the Avera emergency room on October 2, 2006, and was seeking help for Percocet abuse. AR666. His affect was flat, but he was not suicidal and he was referred to behavioral health services. AR667.

         Mr. Whittle was seen in the Avera emergency room on November 21, 2006, for right flank pain suspected to be related to kidney stones, but the tests disproved that and pain medications were stopped and Mr. Whittle was told he would not receive any more and he ripped out his IV and left. AR659. In addition to his visits to the Avera ER the notes state that he had been seen at the Sioux Valley ER multiple times in November, and drug seeking behavior was diagnosed. AR659. Examination of Mr. Whittle's extremities revealed no evidence of trauma or edema and no significant amount of CVA or flank tenderness on either side. AR658.

         Mr. Whittle was seen at the Avera emergency room on November 23, 2006, and was again seeking help for pain medication abuse. AR654. He was anxious but not suicidal and he left against medical advice. AR655. However, he returned to the ER the next day and was given a prescription for a clonidine patch and Zofran for opiate withdrawal. AR652.

         Mr. Whittle was seen at Sanford Sertoma Clinic on November 30, 2006, complaining of pain related to kidney stones. AR1376. He received a Percocet prescription which was reduced to only 10 pills when the doctor discovered Percocet prescriptions he had received from multiple providers in the recent past. Id.

         Mr. Whittle was seen at the heart hospital emergency room on December 7, 2006, complaining of right flank pain, and reported he had not been seen at any other Avera ER for about one month. AR419. Records were obtained which showed otherwise, and Mr. Whittle was confronted and admitted he had been trying to get drugs. AR421. Mr. Whittle received Toradol and Ultram. AR422.

         Mr. Whittle was seen at the Avera emergency room on December 9, 2006, again for issues with Percocet abuse and withdrawal symptoms. AR648.

         Mr. Whittle was transported to the Avera emergency room via ambulance on December 11, 2006, and admitted after overdosing on oxycodone. AR633. He had been found by the police driving down the wrong side of the road at very slow speed wearing sunglasses at night. Id. Mr. Whittle was admitted to the intensive care unit. AR634. A psychiatric exam revealed he was very anxious, confused, pacing, restless, dysphoric, and indignant. AR631. Mr. Whittle's affect was quite labile, attention and concentration diminished, and oriented to self, but not date or place. Id. His GAF was assessed at 35-40, and a 5-day mental hold was initiated, and he was transported to the behavioral health center the next day, admitted to the acute adult program and put on 15-minute check and suicidal precautions. AR615, 624, 632. An examination at that time revealed that Mr. Whittle's thoughts were coherent and logical, he had no loosening of associations or suicidal ideation, he was quite disheveled with fair hygiene, his speech was rambling, he looked tired and drowsy, he had poor eye contact, his mood was dysphoric with restricted affect, his formal memory, attention and concentration could not be tested, and his insight and judgment were poor. AR614-5. Mr. Whittle's GAF was assessed at 35-40. AR615. Mr. Whittle's hold was dropped, and he was discharged on December 13, 2006, with plans for rehab treatment at Keystone starting December 14, 2006. AR612.

         Mr. Whittle was seen at the Avera emergency room on December 27, 2006, for issues with Vicodin overdose, elevated liver enzymes with possible Tylenol toxicity, and he left the ER against medical advice. AR607. An examination showed his gait was stable, his cranial nerves were grossly intact, and he had no gross motor or sensory deficits. Id.

         Mr. Whittle was seen at the Avera emergency room on January 9, 2007, his 11th ER visit since August, 2006, in an obvious altered mental state for a drug overdose. AR572, 587. Mr. Whittle arrived via ambulance following a 911 call when he was found wandering in an apartment complex naked covered in his own feces. AR572, 586. Mr. Whittle was placed on a mental hold and admitted to the intensive care unit. AR573. On admission, Mr. Whittle's GAF was assessed at 29 and his hold was continued and he was transferred to the S.D. Human Services Center (“HSC”) upon discharge. AR585. The diagnoses at transfer included major depressive disorder, anxiety disorder, rule-out bipolar disorder, narcotic dependence, opiate dependence, and B traits, provisional. AR585.

         Mr. Whittle was admitted to the HSC involuntarily on January 12, 2007, and received in-patient treatment through February 20, 2007. AR342, 351. Mental status examination upon admission revealed Mr. Whittle to be very fidgety and anxious, mood dysphoric, and his insight and judgment were marginal, but otherwise the exam was normal. AR352. His psychomotor activity was within normal limits, he was coherent, logical, and goal-directed, and his mental grasp and cognitive ability showed he was oriented to person, place, and time. Id. Mr. Whittle's diagnoses at admission were narcotic dependence, bipolar disorder, and anxiety disorder with his GAF assessed at 25-30. AR352. The treatment notes relate that Mr. Whittle had received prior treatment at Keystone three times, once for a full treatment stay and twice for two weeks of detox. AR387. The treatment notes state Mr. Whittle's longest period of sobriety had been one month in the prior three years. AR394. The January 30, 2007, treatment note observes Mr. Whittle did not endorse any mental health symptoms, and it seemed apparent he was manipulating to leave the program early. Id. Personality disorder not otherwise specified with cluster B traits were added to his diagnosis on February 6, 2007. AR395. The issue which led to Mr. Whittle's early discharge was a verbal altercation and documented physical aggression towards another peer, and it was recommended that he continue treatment at Keystone in their intensive outpatient program. AR411, 413. The HSC records documented that Mr. Whittle was receiving individual therapy from Gretchen Starnes at Volunteers of America, and his psychiatrist was Rajesh Singh, MD also at Volunteers of America.[3] AR353.

         Mr. Whittle was seen at the Sanford Sycamore Clinic on February 21, 2007, complaining of pain related to his kidney stones and he was told to go to the hospital for a CT scan. AR1375. The nursing notes from the exam noted he was “very suspicious for drug seeking behavior”. AR1375.

         Mr. Whittle had some sort of encounter with the Sanford emergency room on February 27, 2007. AR1374.

         Mr. Whittle was seen at the Avera emergency room on March 10, 2007, with complaints of palpitations, and had recently been discharged from the Human Services Center for drug rehab and psychiatric evaluation. AR557. He was somewhat anxious with flat affect, but no suicidal ideation was appreciated. AR558. Mr. Whittle was also alert, oriented, and in no respiratory distress. AR557. His strength and sensation of all extremities was intact. AR558.

         Mr. Whittle had some sort of encounter with the Sanford emergency room on March 28, 2007. AR1374.

         Mr. Whittle was seen at the Avera emergency room on March 30, 2007, for Percocet withdrawal symptoms and reported taking probably 100 pills over the prior 4 to 5 days, and he was trying to get back to Keystone. AR551.

         Mr. Whittle had some sort of encounter with the Sanford emergency room on March 31, 2007. AR1373.

         Mr. Whittle was seen at the Avera emergency room on April 28, 2007, complaining of right flank pain and an IV was given with Toradol and Zofran for pain and a CT revealed kidney stones, but without any obstructive pattern. AR543.

         Mr. Whittle was seen at the Avera emergency room on May 14, 2007, for withdrawal symptoms and reported having a kidney stone and obtaining Vicodin in Dell Rapids. AR539.

         Mr. Whittle was seen at the heart hospital emergency room on June 2, 2007, complaining of right flank pain, and he received Toradol and repeat doses of morphine. AR432.

         Mr. Whittle was seen at the heart hospital emergency room on June 5, 2007, complaining of right flank pain, and he again received Toradol and repeat doses of morphine. AR438. The doctor noted Mr. Whittle had been seen at numerous emergency departments, including Deuel County Memorial Hospital recently. AR439.

         Mr. Whittle was seen at the Avera emergency room on June 5, 2007, complaining of right flank pain following a ureteral stent placement earlier that day, and despite taking Vicodin at home his pain continued. AR523, 535. Mr. Whittle was given Zofran, Toradol, and fentanyl for his pain, which alleviated his pain completely. AR524. He removed his own IV and left against medical advice when additional requests for narcotics were denied. AR524. Mr. Whittle returned to the ER the next day again complaining of pain, and was given 2 tablets of Vicodin and again removed his own IV and left the hospital. AR519.

         Mr. Whittle was seen at the heart hospital emergency room on June 7, 2007, complaining of right flank pain, but was sent to his urologist so was not examined or treated. AR446.

         Mr. Whittle was seen at the Avera emergency room on July 5, 2007, complaining of headache and requesting Toradol, which was given. AR513. On examination, Mr. Whittle's gait was normal, his cranial nerves and sensation were grossly intact, and he exhibited 5/5 strength in both the upper and lower extremities. Id. Mr. Whittle's serial neurological examinations were “completely intact” and he had “much improvement of his headache.” AR513.

         Mr. Whittle was seen at the Avera emergency room on November 16, 2007, for Vicodin withdrawal symptoms and reported taking Vicodin the last 10 days. AR508. He was encouraged to follow-up to get a chemical dependency assessment and see if there were other treatment options available. AR509.

         Mr. Whittle was seen at the Sanford Brandon Clinic on January 8, 2008, for right flank pain and received Toradol, and then requested Ultram for pain relief and received a prescription for three pills after reporting that he had never abused Ultram in the past. AR1372-73.

         Mr. Whittle was seen at the emergency room on January 22, 2008, complaining of headache and was given Benadryl, Compazine and Toradol. AR504-05. He was neurologically intact with appropriate mood, affect and judgment. AR505.

         Mr. Whittle was seen at the Sanford Luverne Hospital on February 21, 2008, for right flank pain. AR1371. A CT scan of his abdomen and pelvis revealed that bilateral kidney stones were present, but his ureters looked normal with no ureteral stone or sign of recent passage. Id. There was also no sign of appendicitis. Id.

         Mr. Whittle was seen at the Avera emergency room on March 4, 2008, complaining of a headache and was given Benadryl, Compazine, and Toradol, then pulled his own IV and left. AR496-97.

         Mr. Whittle was seen at the Avera emergency room on April 20, 2008, complaining of alcohol withdrawal symptoms and reported that he had not drank in 36 hours but usually consumed a large bottle of vodka daily. AR489. Mr. Whittle received an IV line and Ativan, which improved his symptoms. AR490. He said he planned to follow up with an outpatient alcohol detoxification program. AR490.

         Mr. Whittle presented to the Avera behavioral health center on May 3, 2008, reporting a nervous breakdown and was admitted due to declining functional capacity and prevention of self-harm. AR473. He reported being overwhelmed with financial and legal problems and was in the 24/7 program which required to present to the courthouse twice a day to be breathalyzed. AR473. Mr. Whittle said that he was sleeping well and had good energy, and he denied any suicidal ideation. Id. Mental status exam revealed his mood was very anxious, affect was mood congruent, no evidence of psychosis, sensorium was clear, he was oriented times 3, his speech was logical and coherent, his memory and abstractive abilities were intact, his concentration was fair, insight was fair, and judgment very poor, and his GAF was assessed at 30. AR474-5. Mr. Whittle requested to leave, but agreed to stay when told they would file a hold on him because he was not safe to leave. AR473. Mr. Whittle's mood and anxiety improved and he requested discharge. AR471. He did not meet any of the hold criteria and was discharged on May 5, 2008. Id. He seemed hopeful and positive, but his long-term prognosis was somewhat guarded. Id.

         Mr. Whittle was seen at the Avera emergency room on June 16, 2008, complaining of alcohol withdrawal symptoms and reported that he was at a break in his drinking. AR465.

         Mr. Whittle was seen at the Avera emergency room on August 6, 2008, complaining of alcohol withdrawal symptoms and reported that he had not drank in 36 hours, but prior to that he had drank heavily for a month, finishing a 750 ml bottle of vodka over two-day periods. AR459.

         Mr. Whittle was seen at the Sanford emergency room for alcohol withdrawal symptoms on August 11, 2008. AR1369.

         Mr. Whittle was seen at the Sanford emergency room for alcohol withdrawal symptoms on July 19, 2009. AR1365. He said he had relapsed 3 weeks ago and his last drink was the night before. Id. On examination, his was alert and oriented, his speech, behavior, judgment, thought content, cognition, and memory were normal, he displayed mild tremors, and his mood was anxious. AR1367.

         Mr. Whittle was seen at the Sanford 69th St Clinic for alcohol withdrawal symptoms on August 15, 2009. AR1363-64.

         Mr. Whittle was seen at the Sanford 49th St. Clinic on October 27, 2009, for medication check for his depression and anxiety medications. The doctor noted he had not seen Mr. Whittle in a while and the last time Mr. Whittle had contaminated his urine sample with blood in order to get narcotic medication, and then ran out the door. AR1362.

         The Sanford 49th St. Clinic was contacted on November 9, 2009, by the county jail because Mr. Whittle was short Xanax pills and they contacted the half-way house where he stayed and were told he was manipulating staff and taking more than he was supposed to. AR1360.

         Mr. Whittle was seen at the Sanford 49th St. clinic on December 18, 2009, with problems sleeping, panic attacks, constant worry, and constant thoughts running through his head. AR1359. Mr. Whittle was in jail and would be there another four months. Id. His symptoms included depressed mood, agitation, appetite change, anxiety, diminished interests and concentration, fatigue, insomnia and psychomotor retardation, and his mental status exam was normal. Id. His Remeron medication was discontinued and Ambien started. Id.

         Mr. Whittle was seen at the Sanford 49th St. clinic on April 19, 2010, to discuss his medications and a tremor. AR1357-8. He had lost 50 pounds and appeared very anxious, tremulous, stressed and thin. AR1357. His medications were changed again. AR1358.

         Mr. Whittle was seen at the Sanford 49th St. clinic on April 28, 2010, and wanted to change his medications again. AR1356. Mr. Whittle also admitted drinking some since being released from jail. AR1356.

         Mr. Whittle was seen at the Sanford Hospital on May 11, 2010, due to problems with alcohol. AR1354. He reported he had been drinking daily since being released from jail, and was now having right flank pain, and he reported being agitated and had a slightly anxious affect. AR1354-55.

         Mr. Whittle contacted the Sanford 49th St. clinic on May 26, 2010, and was at the county detox center and reported he was “going crazy” and needed something stronger for his anxiety. AR1354. The exam record stated, “Informed pt. that Dr. Meyer is out until next week and that he should have staff bring him to ER for immediate evaluation.” Id.

         Mr. Whittle contacted the Sanford 49th St. clinic again on June 1, 2010, and was still in detox and again requested something for his anxiety as well as something to help with sleep. AR1353. Dr. Meyer was not willing to increase Mr. Whittle's Clonazepam dosage. Id.

         Mr. Whittle contacted the Sanford 49th St. clinic on June 22, 2010, and reported he had been kicked out of a treatment facility in Mitchell[4] for smuggling in alcohol and was back at the county detox center. AR1352. He said he went crazy in Mitchell and felt like he was going to murder someone and needed something more than clonazepam for his anxiety, and his dosage was doubled. Id.

         Mr. Whittle contacted the Sanford 49th St. clinic on June 25, 2010, and requested an early refill of his clonazepam because he had taken more than the prescribed amount while in the detox center. Id. Dr. Meyer informed Mr. Whittle it was too early to refill his prescription. AR1352.

         Mr. Whittle was seen at the Sanford emergency room on August 7, 2010, for head and tooth pain and reported he had a seizure and hit his head, and had staples placed but they were removed for an MRI. AR1349. He also reported taking 45mg of Klonopin to sleep the prior Monday, (prescribed dose was .5 to 1.0mg- AR1352), and 45 mg of Librium the prior night. Id. The treatment note indicates he was in a treatment facility in Yankton[5] the prior week. AR1349. Mr. Whittle admitted occasional abuse of his benzodiazepines, and was requesting pain medication. AR1350. On examination, he was alert, his speech was clear and fluent, his neurological examination was nonfocal, and he was unkempt and had very poor hygiene. Id. He was treated with saline and sent to the mission for the night. Id. He was encouraged to discontinue abuse of drugs and alcohol. Id.

         Mr. Whittle contacted the Sanford 49th St. clinic on August 11, 2010, and requested a refill of his Clonazepam and an increased dosage due to panic attacks. AR1349.

         Mr. Whittle was seen at the Sanford 49th St. clinic on August 16, 2010, following his hospitalization for an overdose and depression. AR1348. He reported he had been kicked out of his dad's house and had overdosed on the Klonopin recently prescribed. AR1348. He was observed to look thin, anxious, frustrated and tremulous. Id. Mr. Whittle's antidepressants were refilled but he was not given benzodiazepine. Id. Dr. Meyer was not convinced that Mr. Whittle was committed to living a clean lifestyle and he encouraged him to get a job. Id.

         Mr. Whittle was brought to the Sanford emergency room via ambulance on August 18, 2010, and he had been living at the mission and drinking ½ gallon of alcohol daily. AR1345. Mr. Whittle said that he saw his primary doctor 2 days ago and had neglected to tell him that he was drinking heavily again. Id. On examination, he was oriented and in no distress and his mood, affect, behavior, judgment, and thought content were normal. AR1346. He was treated with saline and Zofran. Because there was no room at the detox facility and no family member to take him, he was sent by cab back to the mission. AR1347-48.

         Mr. Whittle was seen at the Sanford emergency room on September 9, 2010, and reported having taken all of his meds, drank a bunch of alcohol and overdosed, and he was placed on a hold and admitted to ICU. AR1338, 1341. He reported feeling somewhat suicidal. AR1339. Examination revealed slurred speech, impulsivity, depressed mood and suicidal ideation. AR1340.

         Mr. Whittle was oriented and in no distress and his cognition and memory were normal. Id. The treatment notes discuss a prior involuntary hold in July 2010, initially at Avera McKennan Behavioral Health and then being transferred to the HSC in Yankton where he spent 25 days before being discharged on August 2, 2010[6]. The records indicate Mr. Whittle switched his addiction from Percocet to alcohol in 2007, and he reported attempting suicide several times in the past six months. AR1342. Mr. Whittle's hold was continued, and he was transferred by deputy to the HSC in Yankton on September 10, 2010[7]. AR1343. Dr. Meyer, Mr. Whittle's treating physician from the Sanford 49th St. clinic, examined him while he was in the hospital and stated Mr. Whittle appeared medically stable at that point and he believed Mr. Whittle needed inpatient treatment for depression, drug addiction and alcoholism with possible long-term inpatient treatment. AR1345.

         The records from Sanford 49th St. clinic state on September 15, 2010, that “Records received from Yankton Human Services center.” AR1338. Mr. Whittle was seen at the Sanford 49th St. clinic on September 16, 2010, and the Subjective section of the exam note states Mr. Whittle was seen for follow-up from hospitalization, “He was hospitalized 1 week ago for alcoholism and depression at Yankton.” AR1337.

         Mr. Whittle was brought to the Sanford emergency room on December 13, 2010, complaining of pain which started when his medications were withdrawn that morning at HSC where he was released after four days of treatment.[8] AR1335. He reported being suicidal and overdosing on his meds while at HSC. Id. On examination, his mood, affect, behavior, judgment, and thought content were normal. AR 1336. He denied suicidal and self-injury ideas in his review of symptoms. Id.

         Mr. Whittle was seen at the Sanford emergency room on December 27, 2010, with jitteriness, nausea and not feeling well. AR1333. Mr. Whittle reported sleep disturbance, dysphoric mood, and was nervous/anxious, but not suicidal. AR1334. He was treated with saline, Ativan, and thiamine and given enough medication to last until his appointment at Falls Community Health the next Wednesday, and the note also stated he had established care at the Fifth Street Connection and was to see a psychiatrist. AR1333-34.

         Mr. Whittle was brought to the Sanford emergency room via ambulance on February 8, 2011, after consuming two pitchers of beer and 750ml of vodka. AR1328. He was discharged on an alcohol hold to detox. AR1329.

         Mr. Whittle was seen at the Sanford emergency room on April 23, 2011, for alcohol withdrawal symptoms and reported drinking about a case of beer daily for the past three weeks since he got off the 24/7 program. AR1326.

         Mr. Whittle was brought to the Sanford emergency room via ambulance on April 30, 2011, for alcohol withdrawal symptoms and reported drinking a 750ml of vodka or tequila daily, and had gotten off the 24/7 program four weeks earlier, but drank the whole time he was in the program stating it was easy to cheat the program. AR1318, 1322. He was found to be tachycardic in the 120s, and was treated and discharged home with instructions to contact Falls Community Health the next morning. AR1322.

         Mr. Whittle was seen at the Sanford emergency room on May 5, 2011, for alcohol withdrawal and reported he had gone back to drinking following his discharge four days earlier. AR1317.

         Mr. Whittle was seen at the Sanford emergency room on May 9, 2011, for alcohol withdrawal and reported shakes, body aches and nausea without resolution after trying a few drinks. AR1315. Mr. Whittle was intoxicated and the detox center was full, but Mr. Whittle stated he could stay with his father, but then left prior to being discharged. AR1317.

         Mr. Whittle was seen at the Sanford emergency room on May 9, 2011, for alcohol withdrawal symptoms and he again reported a 26-day inpatient treatment at Yankton the prior August. AR1312. Mr. Whittle was seen again on May 14, 2011, and reported that he had been to the detox center multiple times, but always left after a few hours. Id. On examination, his speech, cognition, and memory were normal. AR1313. The detox center was full, and Mr. Whittle removed his own IV and left before treatment was completed. AR1314.

         Mr. Whittle was seen at the Sanford emergency room on May 28, 2011, for alcohol withdrawal symptoms and abdominal pain. AR1310. He received treatment from 9:51 that evening until the following morning at 6:27 then left on his own. AR1312.

         Mr. Whittle was seen at the Sanford emergency room on June 14, 2011, for ulcers and reported that he had not drank for two weeks. AR1308.

         Mr. Whittle was seen at the Sanford emergency room on June 21, 2011, for a migraine and alcohol withdrawal symptoms and reported he was drinking again. AR1307. He appeared healthy, alert, and cooperative and his neurological examination did not reveal any focal findings. AR1308. His mental status and speech were normal and he was fully oriented. Id. Mr. Whittle reported that he was not sure he wanted to quit drinking. Id.

         Mr. Whittle was seen at the Sanford emergency room on August 3, 2011, for a migraine and alcohol withdrawal symptoms and reported drinking a six pack of alcohol daily. AR1304. His speech and behavior were normal and he expressed no suicidal ideation. AR1305.

         Mr. Whittle was seen at the Sanford emergency room on August 16, 2011, for alcohol withdrawal symptoms. AR1303.

         Mr. Whittle was seen at the Sanford emergency room on August 26, 2011, for abdominal pain and vomiting, and received Toradol, Lorazepam, and Zofran. AR1300-02.

         Mr. Whittle was seen at the Sanford emergency room on August 27, 2011, for abdominal pain and reported he had not drank in a week, but was seen again on September 2, 2011, for vomiting and reported being unable to hold down fluids including water, but had been able to hold down a few beers. AR1297, 1299.

         Mr. Whittle was seen at the Sanford emergency room on September 9, 2011, for alcohol withdrawal symptoms, and reported drinking daily with symptoms starting when his neighbor cut him off alcohol. AR1295.

         Mr. Whittle was seen at the Sanford emergency room on September 22, 2011, for flank pain, and presented with alcohol on his breath and left before any tests could be performed. AR1293-94.

         Mr. Whittle was seen at the Sanford emergency room on September 25, 2011, for alcohol withdrawal symptoms. AR1292. He was alert and oriented, his speech was normal, and he denied suicidal ideation. Id.

         Mr. Whittle was seen at the Sanford emergency room on October 2, 2011, for alcohol withdrawal symptoms. He reported usually drinking four 24oz beers and 2-3 shots of rum at one sitting. AR1289. The subjective portion of the exam note stated that Mr. Whittle had been in treatment twice this year already at Keystone and Yankton.[9] AR1290. Mr. Whittle was noted to be on a daily dose of 20 mg valium and was cautioned about combining benzodiazepines and instructed that any further BZD prescriptions needed to come from Dr. Fuller with psychiatry.[10] AR1291.

         Mr. Whittle was seen at the Sanford emergency room on October 7, 2011, for anxiety that felt like a panic attack, nausea, tremors and alcohol withdrawal, and after treatment was started he wanted to leave but his blood alcohol level was too high to allow an “against medical advice” release. Security found him in the parking lot and returned him for treatment until his blood alcohol level declined. AR1287-89. Examination revealed he was alert and oriented with normal motor and sensory function and no focal deficits. AR1289.

         Mr. Whittle was seen at the Sanford emergency room on October 14, 2011, for alcohol withdrawal symptoms. AR1284. His mood, affect, speech, behavior, thought content, cognition, and memory were normal. AR1285.

         Mr. Whittle was seen at the Sanford emergency room on November 4, 2011, twice for alcohol withdrawal symptoms, once in the morning and once in the evening. AR1281-2. Mr. Whittle's morning examination revealed a normal mood and affect. AR1283.

         Mr. Whittle was seen at the Sanford emergency room on November 5, 2011, for alcohol withdrawal symptoms. AR1280.

         Mr. Whittle was seen at the Sanford emergency room on November 17, 2011, for alcohol withdrawal symptoms, and reported that his neighbor supplies him with alcohol, but when his neighbor runs out of money he starts having withdrawal symptoms. AR1278-80.

         Mr. Whittle was seen at the Sanford emergency room on November 24, 2011, for alcohol withdrawal symptoms. AR1276.

         Mr. Whittle was seen at the Sanford emergency room on December 3, 2011, for alcohol withdrawal symptoms, including vomiting blood, and he reported he had stopped drinking, but when confronted about the smell of alcohol he admitted to drinking two beers to help with withdrawal. AR1274.

         Mr. Whittle was seen at the Sanford emergency room on December 14, 2011, for alcohol withdrawal symptoms. AR1273. The treatment note stated he had been to the emergency room 30 times this year and he was not given an Ativan starter pack this time and was told to talk to his case manager and encouraged to follow up with Falls Community Health.[11] AR1274.

         Mr. Whittle was seen at the Sanford emergency room on December 21, 2011, for alcohol withdrawal symptoms. AR1271. He was assessed with dehydration and some withdrawal symptoms, though his sensorium was intact. AR1273.

         Mr. Whittle was seen at the Sanford emergency room on January 7, 2012, for abdominal pain and had been drinking. AR1269.

         Mr. Whittle was seen at the Sanford emergency room on January 8, 2012, for alcohol withdrawal symptoms. AR1267.

         Mr. Whittle was seen at the Sanford emergency room on February 4, 2012, for chest pain and anxiety, and alcohol withdrawal symptoms. AR1263.

         Mr. Whittle was seen at the Sanford emergency room on February 17, 2012, for alcohol withdrawal symptoms. AR1262. Examination revealed he was alert and oriented to time, place, and person, he answered questions appropriately, he appeared intoxicated, and he smelled of alcohol. Id. Mr. Whittle left prior to completion of ETOH hold and transfer. Id.

         Mr. Whittle was seen at the Sanford emergency room on March 18, 2012, for alcohol abdominal pain. Id. He reported that his psychiatrist would no longer prescribe his non-psychiatric medications and he hadn't made it in to “CHC” to obtain them.[12] AR1261. He was alert and fully oriented and his mood and affect were normal. AR1262. His abdominal examination revealed no tenderness. Id.

         Mr. Whittle was seen at the Sanford emergency room on April 3, 2012, for abdominal pain, and he reported that he obtains his psychiatric medications from “Fifth Street Connection” but they would not refill his Nexium, and he was advised to get a prescription at Falls Community Health.[13]AR1260.

         Mr. Whittle was seen at the Sanford emergency room on May 16, 2012, for abdominal pain and requesting Nexium because the “lady” at “FCH” was on vacation. AR1256. He reported he had not drank in a week. Id. His abdomen was soft with epigastric tenderness, but no guarding, mass, rebound, or CVA tenderness. AR1257. He was seen again on May 23, 2012, with the same symptoms and again reported he had not drank in a week. AR1253.

         Mr. Whittle had similar emergency room visits for abdominal pain on May 24, 2012 and May 31, 2012. AR1250-51. At both visits, he reported he had been drinking beer. Id.

         Mr. Whittle was seen at the Sanford emergency room on August 23, 2012, for alcohol withdrawal symptoms, and reported drinking daily, but had stopped 28 hours earlier. AR1248.

         Mr. Whittle was seen at the Sanford emergency room on September 12, 2012, for abdominal pain symptoms and reported that he had been drinking for two weeks but had been sober for four months before that. AR1246.

         Mr. Whittle was seen at the Sanford emergency room on September 19, 2012, for alcohol withdrawal symptoms. AR1245. He said his last drink was the day before. AR1245.

         Mr. Whittle was seen at the Sanford emergency room on September 24, 2012; October 8, 2012; and November 25, 2012, for alcohol withdrawal symptoms. AR1240, 1242, 1244. At the September 24, 2012, visit Mr. Whittle reported he continued to drink. AR1244. On ...


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