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Pogany v. Berryhill

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

July 3, 2019

IMELDA I. POGANY, 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, Imelda I. Pogany, seeks judicial review of the Commissioner's final decision denying her application for social security disability, supplemental security income disability benefits, and widow's insurance benefits under the Social Security Act.[1]

         Ms. Pogany has filed a complaint and has requested the court to reverse the Commissioner's final decision denying her disability benefits and to enter an order awarding benefits. Alternatively, Ms. Pogany 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, Imelda I. Pogany's (“Ms. Pogany”), application for SSDI, SSI and Widow's Insurance Benefits filed on August 17, 2015, alleging disability since November 12, 2014, due to PTSD, depression, anxiety, knee pain, and chronic sacroiliac pain. AR308, 315, 325, 409, 430 (citations to the appeal record will be cited by “AR” followed by the page or pages).

         Ms. Pogany's claim was denied initially and upon reconsideration. AR184, 189, 194, 202, 209, 216. Ms. Pogany then requested an administrative hearing. AR223.

         Ms. Pogany's administrative law judge hearing was held on November 8, 2017. by Richard Hlaudy (“ALJ”). Ms. Pogany was represented by other counsel at the hearing, and an unfavorable decision was issued on February 6, 2018. AR17, 42.

         At Step One of the evaluation, the ALJ found that Ms. Pogany was insured for benefits through June 30, 2021, and that she was the unmarried widow of the deceased insured worker and met the non-disability requirements for disabled widow's benefits with the prescribed period ending on July 31, 2019. AR23.

         At Step One of the evaluation, the ALJ also found Ms. Pogany had engaged in substantial gainful activity, (“SGA”), from February 2015, through September, 2015, and found that the earliest possible onset date was October 1, 2015. AR23-24.

         At Step Two, the ALJ found that Ms. Pogany had severe impairments of lumbar degenerative disc disease; tricompartmental arthritis, left knee; anxiety disorder; PTSD; depressive disorder; and narcotic dependence. AR24.

         The ALJ also found that Ms. Pogany had shown on exam in August 2016, multiple fibromyalgia trigger points, and had undergone trigger point injections, but found that a “clear diagnosis of fibromyalgia” is not reflected in the record, and consistent with SSR 12-2p found that fibromyalgia was not a medically determinable impairment. Id. The ALJ then stated, “However, given the claimant does have ‘severe' impairments that would reasonably result in pain, the totality of her pain complaints is considered as it relates to her maximum residual functional capacity.” AR24-25.

         At Step 3, the ALJ found that Ms. Pogany 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”). AR25. The ALJ considered the mental impairments under Listings 12.04, 12.06, and 12.15 and found that Ms. Pogany had mild 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 herself, so did not meet a Listing. AR25-26. The ALJ also considered Listing 1.04, but found that imaging studies did not reflect a compromise or compression of the nerve root or spinal cord. AR25.

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

less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant is able to lift and/or carry 20 pounds occasionally and 10 pounds frequently. She can stand and/or walk for 6 hours in an 8-hour workday and can sit for 6 hours in an 8-hour workday. The claimant is limited to occasionally climbing ramps/stairs but can never climb ladders/ropes/scaffolds. The claimant can occasionally stoop, kneel, crouch and crawl. She must avoid even moderate exposure to workplace hazards. Secondary to her mental impairments, the claimant is limited to performing simple, routine tasks. She can tolerate occasional and superficial contact with coworkers and the public.

AR27.

         The ALJ's subjective symptom finding was that Ms. Pogany's medically determinable impairments could reasonably be expected to produce the symptoms she alleged, but her statements concerning the intensity, persistence and limiting effects of her symptoms were not “entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR28.

         The ALJ considered the opinions of the State agency psychological consultants and gave them “little weight.” AR31.

         The ALJ considered the opinions of the State agency medical consultants, and gave them “greater weight” compared to the “little weight” given the psychological consultants. Id. The ALJ stated they were given greater weight because they were generally consistent with the RFC, and the “modest objective findings, medication compliance, daily activities, and ongoing work support that she has such capacity.” Id.

         The ALJ considered the medical source statement completed by Ms. Pogany's former primary care provider, Michael Schurrer, MD, who supported Ms. Pogany's application for disability several times, noting work only aggravates her back pain and psychiatric issues, and she is not physically and emotionally able to work fulltime, and gave his opinions “little weight.” AR31. The ALJ stated Dr. Schurrer raised concerns numerous times with the claimant's substance abuse, and his opinions did “not account for this, ” the objective findings regarding the claimant's physical impairments are quite limited, and her mental health has been “more or less stable” per evidence of record. Id.

         The ALJ considered the medical source statement completed by Ms. Pogany's new primary care provider, Scott Hiltunen, MD, who opined that Ms. Pogany could lift 20 pounds occasionally and 10 pounds frequently, but only stand 2 hours in an 8-hour workday, sit less than 6 hours in an 8-hour workday, never push/pull with the left leg, climb ladders/scaffolds, stoop, or kneel, rarely climb ramps/stairs, balance, crouch, and frequently reach, handle, finger, and feel, and gave the opinions only “some weight.” Id. The ALJ stated he “accepts the general conclusion the claimant can perform a range of light work, other limitations- such as inability to push/pull with the left leg - are not consistent with her modest treatment.” Id.

         The ALJ also considered Dr. Hiltunen's medical source statement regarding Ms. Pogany's mental limitations who opined that she had moderate limitations in understanding, remembering, and carrying out detailed instructions, maintaining concentration for extended periods, completing a normal workday or workweek without interruption from psychologically based symptoms, and performing at a consistent pace and gave the opinions “some weight.” The ALJ stated they were not entirely inconsistent with the RFC and tended to reflect the claimant's current mental ability, but he rejected Dr. Hiltunen's opinion that the claimant would have excessive absenteeism or require excessive breaks asserting it was not supported by the record, and the RFC's reduction to simple, routine work would allow her to maintain appropriate persistence and pace. AR31-32.

         The ALJ considered a series of opinions given by Kelli Rockafellow/Willis, MSW, CSW-PIP, who stated Ms. Pogany's medical and mental health hinders her ability to maintain full-time employment, and that Ms. Pogany was unable to maintain a full-time job due to ongoing mental and physical health issues, and found the statements to be “vague and unclear” but did not state what weight was given to the opinions, if any. AR32.

         The ALJ stated that the RFC he determined was supported by the “modest objective evidence, the stability of the claimant's treatment, the overlay of substance dependence, her ongoing work, and her daily activities. Id.

         The ALJ's decision includes no finding regarding the “materiality” of the asserted “overlay of substance dependence” or the asserted severe narcotic dependence impairment. AR17-41.

         Based on the RFC determined by the ALJ, the ALJ found that Ms. Pogany was not capable of performing her past relevant work. AR32.

         At Step 5, relying on the testimony of a vocational expert (“VE”), the ALJ found Ms. Pogany capable of adjusting to other work that existed in significant numbers such as garment sorter, DOT# 222.687-014; laundry worker, DOT# 361.687-014; and hotel housekeeper, DOT# 323.687-014, relying on testimony from the VE regarding the number of jobs available for each occupation nationally. AR33.

         Ms. Pogany timely requested review by the Appeals Council through her current counsel on March 6, 2018. AR304. Counsel in the request for review had requested access to the e-file and additional time following access to submit additional evidence and argument. Id.

         B. Plaintiff's Age, Education and Work Experience

         Ms. Pogany was born August 4, 1964, and completed the 12th grade in 1984. AR88, 410.

         Ms. Pogany reported working as a cashier and a medical transcriptionist (AR417) and the VE listed the same jobs on his work report (AR503), and the ALJ in the decision failed to identify Ms. Pogany's past relevant work, but concluded she was unable to perform it. AR32.

         C. Relevant Medical Evidence

         1. Avera McGreevy Clinic Records: Physician and Chart Notes

         The earliest treatment notes from Avera McGreevy where Ms. Pogany received her primary care from Michael Schurrer, MD, was an exam on August 11, 2014, when she was seen for ongoing back pain. AR1070. She had already received a nerve block injection and another was being considered, and she was using a TENS unit, doing stretching, and her medications included oxycodone, gabapentin, lorazepam, meloxicam, methocarbamol, trazodone, and citalopram (Celexa). AR1070-71. The history notes a desire to reduce hydrocodone use and a report that the Celexa helped, but not enough. AR1070. Examination revealed tenderness in the back at ¶ 4-S1 area both mid and paraspinal. AR1072. Examination also revealed no deformity of Ms. Pogany's back and she moved around “much more freely” with intact motor and sensory function. Id. The assessment was acute exacerbation of chronic low back pain. AR1073. Dr. Schurrer discussed weaning off her daily hydrocodone dose, but hydrocodone/acetaminophen was listed as a new medication. Id. By August 15, 2014, Dr. Schurrer noted that her taper of medications for low back pain was doing well and Ms. Pogany was anxious to try to drop the dose more. AR1066.

         Ms. Pogany saw Dr. Schurrer on August 18, 2014, and had injured her back when she was pulled on the ground by her dog while walking it. AR1062. She was referred to Dr. Lockwood at the pain clinic. AR1065.

         A chart note from August 18, 2014, indicated that Ms. Pogany was scheduled for a lumbar injection with Dr. Lockwood on August 20, 2014. AR1499. There is also a single record from Orthopedic Institute for August 6, 2014, where Dr. Mitch Johnson stated that Ms. Pogany had already undergone a lumbar injection by Dr. Scott Lockwood at Avera McKennan Hospital. AR504, 793 (Avera Hospital record documenting the injection on referral from Dr. Mitch Johnson and a history of prior back pain and injections).

         Ms. Pogany saw Dr. Schurrer on August 22, 2014, and she reported poor pain relief, and had increased her use of oxycontin. AR1058. Examination revealed back tenderness, pain with straight leg raise at 50 degrees, and pain limiting ambulation on toes and heels. AR1060. She had no deformity of the back and her sensation and reflexes were intact. Id. Her oxycontin dosage was increased back to the higher dose. AR1061.

         Ms. Pogany saw Dr. Stotz on August 29, 2014, with ongoing back pain and had tweaked her back and was out of her Percocet which she used for breakthrough pain. AR1054. She was given a Toradol shot, and a few Percocet tablets. Id.

         The next exam record in the appeal file is for October 6, 2014 (AR1455), but a September 17, 2014, chart note stated that “FMLA” paperwork was completed “which is reasonable as she has multiple issues that would create problems with her working. At this time we are putting her off as of 9/14/14 thru 9/22/14 see form.”[3] AR1494.

         Ms. Pogany saw Dr. Schurrer on October 6, 2014, and reported a fall re-injuring her back the prior week, which caused her to miss work. AR1455. She reported her mood had been improving, but she became more nervous over the weekend and consequently her pain increased. Id. Examination revealed tenderness in her back and slowed movement with guarding. AR1458. She was able to bend over and touch her toes and her motor sensory functions were intact. Id. Her oxycodone medication was changed. Id. She was seen again on October 13, 2014, and had aggravated her back while bending to pick up her phone. AR1450. Dr. Schurrer stated that Ms. Pogany asked to go back on oxycontin, but he said no, it would just continue the cycle of narcotics dependence. AR1453. He stated she would continue to have chronic pain and that was the reason for the pain management group referral, and she was rescheduled after missing an appointment. Id.

         Ms. Pogany saw Dr. Schurrer on October 22, 2014, for the initiation of counseling sessions, and he stated he was waiting for Dr. Stanley to review Ms. Pogany's psych meds, and he learned more about Ms. Pogany's social and economic situation and stated “she will need work adjustment.” AR1443. Ms. Pogany described her pain as “ok.” AR1440.

         Dr. Stanley from mental health reviewed Ms. Pogany's medications on October 29, 2014, and recommended Mirtazapine and a reduction in Bupropion. AR1487.

         Ms. Pogany contacted the clinic on October 29, 2014, and was very tearful; her car had broken down, she was not sleeping, and was having very severe PTSD flashbacks. AR1488.

         Ms. Pogany contacted the clinic on October 30, 2014, and inquired about FMLA to take some time off to “get her head together.” AR1486. She reported being “on a ledge” and she was encouraged to go in for a psychological assessment. Id. She said she had no plans to harm herself and was just stressed. Id.

         Ms. Pogany contacted the clinic on November 10, 2014, because the paperwork for FMLA and short-term disability had not been received yet, and the papers[4] were scanned and sent to the appropriate agencies. AR1483-84.

         Ms. Pogany saw Dr. Schurrer on November 11, 2014, for an exacerbation of her back pain with radiation down the left leg, and reported her stress was a bit more due to work pressure on her and some delay in getting FMLA papers to her, and she was taking all her meds to the max four times per day. AR1426. Examination revealed Ms. Pogany was visibly uncomfortable with movement and straight leg raise to about 60 degrees, prominent diffuse tenderness in the back extending into the glutes and trochanter area, and she was limited with LLE strength in all aspects with a lot of pain. AR1428. Her sensation was “ok” and her hip range of motion was intact. Id. She was referred for a neurosurgery opinion, sent to Dr. Lockwood for a possible additional injection, and her pain med was changed to hydromorphone. AR1429. Ms. Pogany saw Dr. Schurrer on November 17, 2014, while waiting to get into her referrals with ongoing pain and Dr. Schurrer noted it was a difficult dilemma as more pain medication “will worsen psych issue and caution about too much psych med” and he left her medications unchanged. AR1422. Dr. Schurrer also noted Ms. Pogany's pain seemed to be “reasonably controlled.” Id.

         Ms. Pogany saw Dr. Schurrer on November 21, 2014, and had fallen six days earlier and was taking her regular meds and some extra oxycodone. AR1408. Examination revealed back tenderness and limited straight leg raise at 50-60 degrees. AR1411. Examination of the extremities revealed intact pulses, no edema, and normal color, temperature, and sensation. AR1411. Dr. Schurrer continued medications while waiting for pain clinic and neurosurgery, and felt she would always have pain and part of it was anxiety driven so he doubled her lorazepam dosage. AR1412.

         Ms. Pogany saw Dr. Schurrer on November 25, 2014, but saw someone before her appointment with Dr. Schurrer who discussed her upcoming rhizotomy procedure. AR1407. She reported to Dr. Schurrer the injection she had received the day before had helped but now symptoms had escalated a bit. AR1395. Her mood was “ok” and her tailbone was doing better. Id. Examination revealed she was visibly uncomfortable with slow movement, her back was intact, and she had no swelling or edema. AR1399. Her pain medications were increased pending the rhizotomy scheduled the next week. Id.

         Ms. Pogany saw Dr. Schurrer on December 8, 2014, following her rhizotomy procedure and she had ended upon staying the hospital for pain control and she reported continued anxiety and depression issues. AR1378. On examination, she had two very small puncture sites on the lower left lumbar spine, but her back was otherwise normal without any swelling, discoloration, or drainage. AR1383. Her extremities were within normal limits and her motor and sensory function were intact. Id. Ms. Pogany saw Dr. Schurrer on December 16, 2014, and reported that her back had been slowly getting better, but she had fallen on the ice the prior day and was still and sore on her left neck and shoulder. AR1367. She was ambulatory and denied any other focal neurological symptoms. Id. On examination, her lower lumbar spine and left gluteal were tender, but without deformity, swelling, or discoloration. AR1372. Ms. Pogany's extremities were also non-tender with normal range of motion and her motor and sensory function were intact in the arms and legs. Id. By December 23, 2014, when she saw Dr. Schurrer she reported some diffuse low back pain but no radicular pain, and her pain was worse with activity. AR1354. She said that overall her pain was doing well, and that she was taking about four oxycodone per day. Id. On examination, Ms. Pogany's back range of motion was normal and her motor and sensory function were intact. AR1359. Dr. Schurrer felt her sciatica or nerve pain was gone, and only her chronic diffuse lower back pain was left and he continued to taper down her narcotics. Id.

         Ms. Pogany saw Dr. Schurrer on January 6, 2015, and was using oxycodone 2-4 times per day for pain along with a heating pad and stretching. AR1343-44. She said she was “doing ok” with oxycontin and “pretty well” overall. Id. On examination, her back had some mildly diffuse tenderness and her motor and sensory function were intact. AR1348. Dr. Schurrer encouraged her to continue to taper down the oxycontin and he stated that he felt “emotional issues are more important right now and caution when she returns to work.” Id.

         Ms. Pogany saw Dr. Schurrer on January 13, 2015, and she reported increased narcotic use of 5 pills per day, and Dr. Schurrer was concerned over her pattern of dependence and felt treatment with a Methadone program may be needed. He stated “Unfortunately there is a significant connection with her psychologic frame of mind also.” AR1337. On examination, Ms. Pogany was in no acute distress and her back was tender, but without deformity or any real focal findings. Id.

         Ms. Pogany saw Dr. Schurrer on January 27, 2015, and was to return to work in five days and she was very anxious to the point the prior day she had vomited, and her pain was stable with good and bad days. AR1319. On examination, she appeared comfortable and moved about freely. AR1324. Her back was the same with some mild tenderness, but intact range of motion. Id. Her motor and sensory function were intact. Id. Ms. Pogany phoned the clinic later and reported severe anxiety and was told to take additional lorazepam. Id. Dr. Schurrer stated, “I thought this might happen when it was time to return to work. I think her psychy [sic] is to [sic] fragile for her to return to work.” Id. Dr. Schurrer stated, “…returning to the same job will only magnify her problem and I'm not sure there is enough of any medication that is going to control her situational anxiety. She may be looking at disability due to psych reasons.” Id.

         Ms. Pogany saw Dr. Schurrer on February 9, 2015, and had been back to work eight days and was having low back pain despite taking 5-6 oxycodone per day and was taking 2-3 clonazepam per day. AR1308. She said that overall, she had a lot of stress but was “doing ok.” Id. On examination, her back was tender, her straight leg raises were negative, and her motor and sensory function were intact. AR1313. Dr. Schurrer told Ms. Pogany that she may need to look at alternate work or with her psychiatric problems, not working. Id. He also stated he felt she did have narcotic dependence at that time, and recommended chemical dependency treatment, Methadone program, or ongoing narcotics via Dr. Cho. Id.

         Ms. Pogany saw Dr. Schurrer on February 18, 2015, and again on March 4, 2015, and she was doing better, having reduced to two oxycodone per day and handling work better. AR1283, 1295. But by March 9, 2015, had gotten worse pain and had taken more Percocet for a couple of days and then threw them away out of fear of falling back to taking too many. AR1274. On examination, her back was tender, her straight leg raises were negative, and her motor and sensory function were intact. AR1279. Dr. Schurrer said no to any more narcotics and also to Tramadol due to the psych drugs she was taking. Id. Ms. Pogany was scheduled to see Dr. Cho for pain management. AR1469.

         Ms. Pogany contacted the clinic on April 3, 2015, and had just left the emergency room and expressed frustration at the care given and also stated she was not planning to see Dr. Cho again because she did not feel Dr. Cho “has time for her or cares.” AR1467.

         Ms. Pogany saw Dr. Schurrer on April 6, 2015, after a fall and wanted to discontinue treatment with Dr. Cho, had quit her job, and Dr. Schurrer continued to emphasize her psychiatric issues, but Oxycontin was prescribed. AR1265. Dr. Schurrer noted that this was “another story how she fell walking her dog with no apparent physical findings of significant injury. Patient does have definite addiction issues with dependence.” Id. Even when Ms. Pogany's pain was under control, she continued to take narcotics that were prescribed on a per needed basis. AR1265. Because she lost her job her medical insurance was going to end. AR1467.

         Ms. Pogany saw Dr. Schurrer on May 22, 2015, and reported a headache and body aches, and she had run out of Oxycontin because she threw them away, and was out of clonazepam because she could not afford the refill, and she had been drinking 2-5 whiskeys per day. AR1215. She was observed to move about freely with a slight limp, and a low dose of Tramadol was prescribed. AR1220. On examination, Ms. Pogany made good eye contact, her cranial nerves were intact, and she appeared more angry than depressed. Id.

         Ms. Pogany saw Dr. Schurrer on June 15, 2015, and reported back pain, getting a 2nd job with HyVee, being on her feet up to 10 hours per day, and tapering off two psych meds due to cost issues. AR1200. She denied any symptoms of depression. Id. On examination, Ms. Pogany moved about freely, her back was tender, her straight leg raises were negative, and her motor and sensory function were intact. AR1205. Dr. Schurrer felt she sabotaged herself by stopping the psych meds and taking on more work. Id. He stated that she did not notice an abrupt change after stopping her psych meds because it can take weeks to totally eliminate the effect and again stated, “Her mental health and trauma she has gone through in my opinion is the biggest reason she has gotten into chronic med abuse and dependence.” Id.

         Ms. Pogany saw Dr. Schurrer on July 6, 2015, and reported working two jobs with over 40 hours per week, and apparently wanted more pain medication, but Dr. Schurrer said she needed to adjust her schedule to not stress her situation. AR1186, 1191. On examination, her back was tender, her straight leg raises were negative, she appeared alert and comfortable, and her motor and sensory function were intact. Id.

         Ms. Pogany was seen at the clinic on July 22, 2015, and reported she was going down her stairs and her left leg felt numb, gave out and she fell and had neck and left gluteal pain. AR1180. On examination, Ms. Pogany had no gross deformities of her extremities, her cranial nerves were intact, and she had 5/5 strength in both her upper and lower extremities. AR1181. She was given Ultram for the pain associated with the fall, and her muscle relaxant was changed to Robaxin for her chronic low back pain. Id.

         Ms. Pogany contacted the clinic on July 20, 2015, and reported having fallen down some stairs, and contacted the clinic again later and reported being in excruciating pain and her counselor met her at the emergency room. AR1459-60. She later left the emergency room frustrated with the care and had a panic attack and drove herself home, even though she was not supposed to drive. Id.

         Ms. Pogany saw Dr. Schurrer on August 13, 2015, and the notes indicate that disability papers had been initiated, and Dr. Schurrer stated, “…note that disability initiated which I am in total agreement with. The patient made huge strides in attempting to control her back issues but ongoing work only aggravates and this along with her psychiatric issues only compound her problem.” AR1159.

         Ms. Pogany saw Dr. Schurrer on August 17, 2015, to follow-up on emergency room treatment after another fall and she was bruised all over on her right leg. AR1146. On examination, Ms. Pogany had diffuse tenderness, but no significant swelling of her right leg and her hip, knee and ankle range of motion were normal. AR1150. Dr. Schurrer noted her disability process was in motion and stated, “…which I again support mainly from a mental health basis and her inability to comply with therapy while in the workforce.” Id.

         Ms. Pogany saw Dr. Schurrer on August 28, 2015, with increased pain and anxiety despite medications. AR1136. On examination, her back was tender with no deformity, her straight leg raises were negative, and her motor and sensory function were intact in the legs. AR1141. Dr. Schurrer gave her Depo-Medrol and Toradol, added Valproic acid, and considered adding Risperdal, and discussing Ms. Pogany with her counselor (Kelli) they felt Ms. Pogany was most likely bipolar and urgently needs to see psychiatry. Id.

         Ms. Pogany saw Dr. Schurrer on September 15, 2015, for ongoing symptoms and examination revealed discomfort with movement, back tenderness and limited straight leg raise at 70-89 degrees. AR1128. Ms. Pogany's hip, knee, and ankle range of motion were intact, as were her motor and sensory functions. Id. Ms. Pogany said that she was sleeping better with her current medications and waking up refreshed and she described her overall mood as “fair.” AR1123. Dr. Schurrer again emphasized the strong emotional/psychiatric ties to her physical state and stated, “Working more is only going to aggravate her situation with increased pain relief and more anxiety with her uncertainty. She is in need of long term counseling/psychiatric care and limited work to attempt to move forward.” AR1128. Dr. Schurrer also noted her medications were limited due to cost constraints. Id. She saw Dr. Schurrer again on September 23, 2015, with continued symptoms and straight leg raise was now limited at 70 degrees, her hip, knee, and ankle range of motion were intact, and an injection was given in her hip. AR1121.

         Ms. Pogany saw Dr. Schurrer on October 9, 2015, and reported ongoing sciatica pain and was taking sertraline and Prazosin for nightmares, which she said was “good.” AR1105. She continued taking hydrocodone for pain and was unable to get back to the pain clinic due to insurance limitations. AR1110.

         Ms. Pogany saw Dr. Schurrer on December 4, 2015, with ongoing back pain and was working 20-25 hours per week. AR1035. She was taking hydrocodone max of four per day and Tramadol on better days, and described the pain feeling like a knife in her lower SI area. Id. On examination, her back range of motion was intact. AR1040. Ms. Pogany was given a Toradol injection and her hydrocodone was refilled. Id. Ms. Pogany was seen again on December 7, 2015, and given a trigger point injection for pain. AR1030. She said that the Toradol injection helped, and that she had been taking the hydrocodone max of four pills and she felt she was not “getting anywhere.” AR1025. On examination, her straight leg raises were negative, her reflexes, motor and sensory functions were intact, and her hip, knee and ankle range of motion were intact. AR1030.

         Ms. Pogany saw Dr. Schurrer on February 9, 2016, with ongoing back pain and had fallen while walking her dog, and was given Depo-Medrol and Toradol injections. AR968, 973.

         Ms. Pogany saw Dr. Schurrer on March 7, 2016, and had fallen and cut her leg with a knife, and she ultimately confessed that she had taken oxycodone with her Ativan and that had caused her fall with the knife, and said she cannot handle Oxy, the doctors and hospital need to know she should never get Oxy again. AR937-38.

         Ms. Pogany contacted the clinic on March 14, 2016, and reported needing someone to talk because she was having a hard time, she had been written up for work absences and felt she would be fired. AR986.

         Ms. Pogany contacted the clinic on March 23, 2016, and reported having a rough day and was unsure whether she could complete her work shift. Id.

         Ms. Pogany presented at the clinic on March 28, 2016, for medication management of her lorazepam and hydrocodone and reported her pain and 6/10 and described things she did for her sciatic pain including ice/heat alterations and stretching exercises. AR985. Her affect was bright and cheerful. Id. Her hydrocodone was refilled for only one week because she could not afford more. Id. On March 30, 2016, Ms. Pogany was contacted to cancel her counseling appointment due to a conflict and she reported low energy, and a difficult day with pain and depression. AR984.

         Ms. Pogany contacted the clinic on April 4, 2016, and reported ongoing pain and more burning and gabapentin was prescribed. Id.

         Ms. Pogany contacted the clinic on April 6, 2016, and reported having increased stress due to being fired from her job due to excessive absences caused by her mental and physical health. AR983.

         Ms. Pogany contacted the clinic on April 19, 2016, and reported that when taking Wellbutrin her anxiety was “through the roof” and she had been on Cymbalta before and did well with that. AR980. Her sertraline was discontinued and citalopram prescribed. Id.

         Ms. Pogany contacted the clinic on April 27, 2016, and reported increased depression related to her lack of employment. AR979.

         Ms. Pogany saw Dr. Schurrer on August 1, 2016, to follow-up on a cut on her foot, and also reported her sciatica acting up a bit, and was very stressed and getting poor rest. AR1701. Ms. Pogany said that her stress was due to her disability denial. Id. Examination revealed tenderness in the neck with no deformity or limitation of range of motion, diffuse tenderness in the back with no deformity, tenderness in the chest, extremities revealed multiple fibromyalgia trigger points, and her assessment included chronic pain syndrome, and Dr. Schurrer stated again that Ms. Pogany was not able to physically and emotionally work full-time. AR1706-07.

         Ms. Pogany saw Dr. Schurrer on September 13, 2016, with ongoing back pain and blood in her urine, and reported left flank pain radiating around front. AR1670. Dr. Schurrer suspected renal colic and stone and wanted a CT scan but it was deferred because of insurance. AR1675.

         Ms. Pogany contacted the clinic on September 19, 2016, to cancel her appointment because she had no transportation and also reported that she had no money for prescriptions. AR1751. She described her symptoms as “OK, ” she said the bleeding in her rectum had stopped for the most part, and her flank pain was now intermittent. Id.

         Ms. Pogany contacted the clinic on January 17, 2017, and asked about community counseling availability that would accommodate her lack of insurance. AR1743.

         Ms. Pogany saw Dr. Schurrer on February 21, 2017, for left leg pain and received Depo-Medrol and Toradol injections. AR1645.

         Ms. Pogany saw Dr. Schurrer on February 22, 2017, with low back pain and left leg pain and had cut back on most of her medications due to financial constraints, and had run out of lorazepam. AR1638. She said she had borrowed some gabapentin from a friend who had quit the medication. Id. She reported her pain is worse if on her feet or sitting too long, and cannot lie on her back. Id. Ms. Pogany said that she received some relief from her Toradol and Depo-Medrol shots the day before. Id. Examination revealed back tenderness and positive straight leg raise at about 70 degrees. AR1643. Ms. Pogany was in no apparent distress and her motor and sensory function were intact. Id. Dr. Schurrer noted her narcotic use was very minimal and he was concerned about her dropping meds with her psychiatric and chronic pain history, and also noted that a generalized exam and labs had also been put off due to financial constraints. Id. Hydrocodone was prescribed. Id. When Ms. Pogany was seen on March 13, 2017, she was given a trigger point injection due to persistent and escalating pain. AR1632. On examination, her hip, knee and ankle range of motion were intact, as were her motor and sensory function. Id.

         Ms. Pogany's care was transferred to Scott Hiltunen, MD, who she saw on August 7, 2017, to establish care and for foot pain. AR1597. Ms. Pogany told Dr. Hiltunen that she had some pain in her left foot and was “feeling pretty good now.” Id.

         Ms. Pogany saw Dr. Hiltunen on August 15, 2017, with left lower leg pain centered around the knee with swelling. AR1590. Examination revealed left leg joint effusion in the knee, edema in the leg below the knee, no redness or palpable cords, tenderness in the knee, and some crepitus. AR1595. Ms. Pogany's vascular ultrasound was negative for any deep vein thrombosis. AR1596. She was referred to Dr. Adler and Dr. Hiltunen stated, “I suspect she will need a knee replacement at some point.” Id.

         Ms. Pogany was scheduled with Dr. Adler at Orthopedic Institute and was notified that she would have to make a payment up front since she had no insurance, and Ms. Pogany said she would check with the county to see if she could get assistance. AR1731.

         Ms. Pogany saw Dr. Hiltunen on September 22, 2017, for her annual exam, and it was noted that she had arthritis of multiple joints, specifically the left knee, sciatic-like back pain with radiation from her buttocks to her left foot exacerbated by sitting for long periods, depression, anxiety and had a couple of recent falls. AR1582. Both falls were related to her left knee giving out, and Ms. Pogany was aware she need surgical intervention but finances were an issue. Id. Ms. Pogany reported her depression and anxiety were fairly well controlled with her current medication regimen. Id. Examination revealed a swollen left knee and an inability to extend it fully. AR1588.

         Ms. Pogany was non-tender to palpation of the knee joints, she exhibited no lower extremity edema, her movement was intact in all extremities, and her sensation was normal in all extremities. Id. The examination neurological details noted a limping gait favoring the left lower extremity. Id. Her mood and affect were normal. Id. She was continued on hydrocodone, but due to drowsiness she was to take one pill less and use Tramadol earlier in the pre-noon time. AR1589. Ms. Pogany told Dr. Hiltunen that she wanted to hold off on orthopedic treatment on her knee. Id. Dr. Hiltunen assessed that her anxiety and depression seemed fairly well controlled. Id.

         Dr. Hiltunen completed a physical medical source statement on November 7, 2017, regarding Ms. Pogany's limitations if she were to attempt full-time sustained work and stated she would be limited to less than two hours standing or walking per 8-hour workday, and less than six hours sitting per 8-hour workday. AR1772. Dr. Hiltunen stated she was limited in her ability to push and pull with her lower extremity and said he doubted she could do it at all. Her knee and her back would limit pushing and pulling to rarely. AR1773. Dr. Hiltunen stated Ms. Pogany was limited to rarely or never climbing, balancing, stooping, kneeling or crouching due to her knee degenerations and those activities would only be recommended for ADLs, stating, “There's no chance she could do any of these even at rare frequency.” Id. Dr. Hiltunen also limited Ms. Pogany to only frequent reaching, handling and fingering. Id.

         Dr. Hiltunen completed a mental medical source statement on November 7, 2017, regarding Ms. Pogany's mental limitations if she were to attempt full-time sustained work and stated she had moderate limitations to her ability to understand, remember, and carry out detailed instructions, maintain concentration for extended periods, complete a normal workday and workweek without psychological interruptions and to perform at a consistent pace, and to handle changes in work setting. AR1777-78.

         2. Avera McGreevy Clinic Records: Counseling Records

         Ms. Pogany saw Kelli Rockafellow, MSW, CSW-PIP, on October 22, 2014, to initiate the coordinated care program to obtain counseling. AR1446. Her GAD-7 Anxiety Severity score was 18, in the severe anxiety range and her PHQ-9 score was 21 indicating that treatment for depression was warranted. AR1444-46.

         Over approximately the next two years Ms. Pogany saw Ms. Rockafellow for 89 counseling sessions. AR881-1499, 1576-1770. The counseling notes described varying symptoms with attention and concentration from fair at times to good other times and psychomotor was listed as fidgety or agitated. Id. Ms. Pogany's depression symptoms included feelings of hopelessness, low self-esteem, anxious or dysphoric mood at times, other times happy or elevated mood, and restricted affect at times and other times bright affect. Id. Her anxiety included difficulty concentrating with constant worry and persistent thoughts, and her PTSD caused sleep issues with her symptoms varying from moderate to severe. Id. The counseling sessions focused on a variety of issues including sleep issues, chronic pain issues, relationship problems, assistance programs, including FMLA, medication issues and coping skills. Id.

         The counseling notes for November 12, 2014, stated that Ms. Pogany had been approved for temporary disability from work until November 24. AR1424. At that appointment, she was fully oriented, her memory was grossly intact, her language was good, her attention, concentration and fund of knowledge were fair, her mood was euthymic, her affect was congruent, and her psychomotor activity was fidgeting. AR1423. In addition, Ms. Pogany's insight and judgment were fair and she exhibited no abnormal thoughts. R1424. Her depression screening was negative. Id. The counseling note from December 30, 2014, stated that her leave from work had been extended to February 1st. AR1353. On examination, her memory was grossly intact, her attention, concentration, language, and fund of knowledge were good, her affect was bright, her mood was happy and elevated, she had no abnormal thoughts, and her thought content was logical and coherent. AR1352. Ms. Pogany said that she felt things were going well. AR1353.

         The counseling notes for January 27, 2015, document that Ms. Pogany reported being in a state of panic and was unable to relax. AR1317. Ms. Pogany left her appointment but called her counselor multiple times that day, and her counselor suggested that Ms. Pogany go to Behavioral Health for a psychological examination, but Ms. Pogany stated she was not suicidal. AR1318.

         The counseling notes for February 11, 2015, state that Ms. Pogany had gone back to work and reported it went “ok” but she had increased back pain. AR1306. On examination, Ms. Pogany's memory was grossly intact, her attention, concentration, language, and fund of knowledge were good, her affect was bright, her mood was elevated, her insight and judgment were fair, her thought content was logical and coherent, her psychomotor activity was fidgeting, and her speech was mildly pressured and hyperverbal. AR1305.

         The counseling notes for March 10, 2015, state Ms. Pogany was concerned about her next psychiatric appointment because she did not have the co-pay so would have to cancel her appointment, but felt she needed her psychiatric medication dosage increased. AR1272. On examination, Ms. Pogany's memory was grossly intact, her language was good, her attention, concentration, fund of knowledge, insight and judgment were fair, and her thought contact was logical and coherent. AR1271.

         The counseling notes for April 3, 2015, stated Ms. Pogany had resigned from her job at Hy-Vee because if she had stayed she would have gone crazy. AR1268. Ms. Pogany said that she was going to start looking for a new job. Id. On examination, her memory was grossly intact, her attention, concentration, and language were good, her fund of knowledge, insight and judgment were fair, her affect was bright, her mood was elevated and her psychomotor activity was restless and fidgeting. AR1267.

         The counseling notes for April 6, 2015, stated Ms. Pogany was losing her insurance because she could not afford COBRA payments. AR1258. Ms. Pogany reported that she was doing “ok” and was still looking for a new job. Id. Her memory was grossly intact, her attention, concentration, language and fund of knowledge were good, her insight and judgment were fair, her mood was bright, her affect was elevated and her psychomotor activity was restless and fidgeting. AR1257.

         The counseling notes for June 15, 2015, stated Ms. Pogany was working at two part-time jobs which resulted in working some days 12-15 hours per day. AR1199. Her counselor discussed with her the potential ramifications this could have, and Ms. Pogany had received Tramadol for her increased back pain. Id. Her memory was grossly intact, her attention, concentration, and language were good, her insight ...


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