United States District Court, D. South Dakota, Southern Division
IMELDA I. POGANY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
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.
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
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. §
Statement of the Case
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
Pogany's claim was denied initially and upon
reconsideration. AR184, 189, 194, 202, 209, 216. Ms. Pogany
then requested an administrative hearing. AR223.
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,
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.
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.
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.
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
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.
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.
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.”
considered the opinions of the State agency psychological
consultants and gave them “little weight.” AR31.
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.”
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
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.
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.
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.
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.
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.
on the RFC determined by the ALJ, the ALJ found that Ms.
Pogany was not capable of performing her past relevant work.
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.
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.
Plaintiff's Age, Education and Work Experience
Pogany was born August 4, 1964, and completed the 12th grade
in 1984. AR88, 410.
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.
Relevant Medical Evidence
Avera McGreevy Clinic Records: Physician and Chart
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.
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.
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).
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.
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.
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.” AR1494.
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.
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
Stanley from mental health reviewed Ms. Pogany's
medications on October 29, 2014, and recommended Mirtazapine
and a reduction in Bupropion. AR1487.
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.
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.
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 were scanned and sent to the
appropriate agencies. AR1483-84.
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
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
Pogany contacted the clinic on April 4, 2016, and reported
ongoing pain and more burning and gabapentin was prescribed.
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
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.
Pogany contacted the clinic on April 27, 2016, and reported
increased depression related to her lack of employment.
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.
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.
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.
Pogany contacted the clinic on January 17, 2017, and asked
about community counseling availability that would
accommodate her lack of insurance. AR1743.
Pogany saw Dr. Schurrer on February 21, 2017, for left leg
pain and received Depo-Medrol and Toradol injections. AR1645.
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.
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
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.
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
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.
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.
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.
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.
Avera McGreevy Clinic Records: Counseling Records
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.
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
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.
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
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.
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
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.
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.
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 ...