United States District Court, D. South Dakota, Northern Division
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE
Jan Lenning, seeks judicial review of the Commissioner's
final decision denying her application for social security
disability and supplemental security income disability
benefits under Title II and Title XVI of the Social Security
Lenning has filed a complaint and has requested the court to
reverse the Commissioner's final decision denying her
disability benefits and to remand the matter to the Social
Security Administration for further proceedings.
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. §
Lenning filed for disability insurance benefits on June 5,
2015; she subsequently applied for supplemental security
income benefits on November 9, 2015, alleging in both
applications disability on the basis of severe depressive
disorder with psychotic features beginning March 15, 2014.
AR167-168; 169-175; 227. Her applications were initially
denied on September 30, 2015, and again upon reconsideration
on February 12, 2016. AR74-89; 92-106; 107-121. Ms. Lenning
timely requested a hearing, which was granted and held before
Administrative Law Judge (ALJ) William L. Hogan on June 14,
her date of disability onset, Ms. Lenning was considered a
“younger individual” (45-49); however, during the
pendency of her claims she shifted age categories to that of
an individual “closely approaching advanced age”
(50-54). AR27; 215. Ms. Lenning has past work experience as a
registered nurse and at least a high school education.
Lenning accrued 72 consecutive quarters of covered earnings
through her alleged date of onset and attempted to return to
work from October 2014 through December 2014; she exceeded
the threshold for substantial gainful activity with earnings
from October and November, 2014, but the ALJ considered this
an unsuccessful work attempt as her employment ended as a
result of her symptoms. AR17-18; 177. Subsequent to the
hearing, Ms. Lenning filed a “Post-Hearing Memorandum
and Objections to the Vocational Witness'
Testimony” on June 29, 2017. AR304.
denied benefits on August 14, 2017. AR12-33. At step 2 of the
sequential analysis, the ALJ found Ms. Lenning suffered from
“severe” impairments of degenerative disc disease
of the lumbar and cervical spine; major depressive disorder,
recurrent, severe, with psychotic features; personality
disorder, not otherwise specified (NOS); post-traumatic
stress disorder (PTSD); and schizoaffective disorder, bipolar
type. AR18. The ALJ found that Ms. Lenning was diagnosed with
fibromyalgia, but that it was not a medically determinable
found that Ms. Lenning's impairments, considered singly
or in combination, did not meet or medically equal the
Agency's listings at step 3. AR18. The ALJ found that Ms.
Lenning retained the residual functional capacity (RFC) to
perform “light work, ” except she could only
occasionally stoop, and frequently climb ladders, ropes,
scaffolds, ramps, stairs, kneel, crouch and crawl; she could
not even have moderate exposure to hazards; she retained the
capacity to understand, remember and carry out routine,
simple instructions, and could interact appropriately with
supervisors, coworkers, and the general public; she could
respond appropriately to changes in a routine work setting
and could make judgments on simple work related decisions.
AR20. With this RFC, the ALJ found that Ms. Lenning was
unable to perform her past relevant work as a registered
nurse, and the ALJ found in Ms. Lenning's favor at step
4. AR26. Relying on vocational evidence, the ALJ found Ms.
Lenning could perform “other jobs” in the
national economy and denied benefits at step 5. AR27.
did not discuss or rule on Ms. Lenning's
“Post-Hearing Memorandum and Objections to the
Vocational Witness' Testimony” in the decision, but
did include it on the exhibit list to the decision. AR32. Ms.
Lenning requested review before the Appeals Council, which
denied her request by notice dated May 29, 2018. AR1-6.
Relevant Medical Evidence
Medical Opinion Evidence
March 21, 2014, Dr. Jon McAreavey wrote Ms. Lenning a work
note, detailing that she had been suffering from back pain
with radicular symptoms and had been trying to work with
restrictions while being treated. AR485. Dr. McAreavey stated
Ms. Lenning's pain had not resolved despite conservative
treatments of physical therapy, epidural, and medication; and
thus, “at this time” she was limited to lifting
less than ten pounds with no bending or twisting. AR485. Dr.
McAreavey opined Ms. Lenning would likely need to be off work
until further notice while she got better. Id.
agency medical consultant Larry VanderWoude, M.D., opined on
September 20, 2015, that Ms. Lenning can lift and/or carry 20
pounds occasionally and 10 pounds frequently; stand and/or
walk about 6 hours in an 8-hour workday; sit about 6 hours in
an 8-hour workday; push/pull without limitations other than
shown for lifting and/or carrying; frequently climb
ramps/stairs/ladders/ropes/scaffolds; frequently stoop,
kneel, crouch, or crawl; balance without limitation; and must
avoid even moderate exposure to hazards but has no other
environmental limitations. AR84-85.
agency psychological consultant, Doug Soule, Ph.D., opined
that Ms. Lenning is moderately limited in the ability to
carry out detailed instructions, but retains the capacity to
do low stress, repetitive type work activities. AR86-87. On
February 10, 2016, State agency psychological consultant
Jerry Buchkoski, Ph.D., affirmed the prior State agency
consultant opinion. AR104.
February 11, 2016, state agency consultant Kevin Whittle,
M.D., opined that Ms. Lenning can lift and/or carry 20 pounds
occasionally or 10 pounds frequently; stand and/or walk for 6
hours in an 8-hour workday; sit for 6 hours in an 8-hour
workday; push/pull without limitation other than shown for
lifting and/or carrying; frequently climb
ramps/stairs/ladders/ropes/ scaffolds; balance without
limitation; occasionally stoop; frequently kneel, crouch, or
crawl; must avoid even moderate exposure to hazards and has
no other environmental limitations. AR101-02.
5, 2017, Carrie Dylla, PA-C, completed a form titled
“Treating Source Statement-Psychological Conditions,
” noting her professional qualifications were as a
physician assistant-certified NCCPA and listing the diagnoses
for which she had provided treatment to Ms. Lenning as
schizoaffective disorder, bipolar type; major depression,
[with psychotic features]; and dyssomnia. She stated she
first started treating Ms. Lenning on April 7, 2015. AR757.
PA Dylla offered a guarded prognosis. Id.
Dylla responded that the particular medical or clinical
findings supporting her diagnoses and assessed limitations
was “patient has exhibited instability of mood and
thought, of severity to require inpatient psychiatric
treatment.” Id. PA Dylla responded
“yes” to the following signs and symptoms:
disturbance of mood accompanied by full or partial depressive
syndrome and bipolar syndrome with a history of episodic
periods manifested by the full symptomatic picture of both
manic and depressive syndromes. Id.
Dylla identified on the form the following signs of
depression: anhedonia or pervasive loss of interest in almost
all activities; sleep disturbance; psychomotor agitations or
retardation; decreased energy; feelings of guilt or
worthlessness; difficulty concentration or thinking; and
thoughts of suicide. AR758.
Dylla identified on the form the following signs of manic
syndrome: hyperactivity; pressured speech; flight of ideas;
decreased need for sleep; easy distractibility; and
hallucinations, delusions, or paranoid thinking. Id.
Dylla identified on the form the following sign of general
anxiety disorder: motor tension. Id.
Dylla identified on the form the following sign of
schizophrenia: delusions or hallucinations. Id.
Dylla identified on the form the following signs of loss of
cognitive abilities: disorientation to time and place; memory
impairment, either short-term, immediate, or long-term;
change in personality; and emotional lability (explosive
temper outbursts, sudden crying, etc.) and impairment in
impulse control. Id. Addressing Ms. Lenning's
memory impairment, PA Dylla wrote that Ms. Lenning did not
recall her most recent inpatient hospitalization at Avera
Behavioral Health. Id.
Dylla identified on the form the following other mental
limitations: current history of one or more years'
inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an
arrangement; and a residual disease process that resulted in
such marginal adjustment that even a minimal increase in
mental demands or change in the environment would be
predicted to cause Ms. Lenning to decompensate. Id.
Dylla left blank the question asking her to identify the
particular clinical findings including results of mental
status examination, which demonstrate the severity of Ms.
Lenning's mental impairment and symptoms. Id.
Dylla opined that Ms. Lenning was markedly limited in her
ability to understand, remember, or apply information; in her
ability to interact with others; in her ability to
concentrate, persist, or manage pace (such that would result
in a failure to complete tasks in a timely manner, in work
settings or elsewhere); and in her understanding and memory
as she had disrupted stability of mood that impaired her
cognitive functioning and her personal relationships.
limited was defined in the opinion as an individual's
ability to function independently, appropriately,
effectively, and on a sustained basis was seriously limited.
AR759. PA Dylla opined that Ms. Lenning was moderately
limited in her ability to adapt or manage herself due to her
instable mood. Id. Moderately limited was defined as
an individual's ability to function independently,
appropriately, effectively, and on a sustained basis was
Dylla opined that Ms. Lenning was markedly limited in her
ability to understand and carry out detailed, but uninvolved
written or oral instructions and in remembering locations or
work-like procedures. AR760. PA Dylla opined that Ms. Lenning
was moderately limited in her ability to understand and carry
out very short and simple instructions. Id. PA Dylla
opined that Ms. Lenning was able to maintain attention and
concentration for 15 minutes before needing redirection or
requiring a break and was not able to maintain regular
attendance and be punctual within customary tolerances.
Dylla opined that Ms. Lenning required enhanced supervision.
Id. PA Dylla opined that Ms. Lenning could not work
appropriately with coworkers or the general public, though
she could sometimes, but not consistently, work with
supervisors. AR760-761. PA Dylla explained the degree and
extent of Ms. Lenning's capacity or limitation in social
interaction as Ms. Lenning “experiences disruption of
thought and instability of mood in social situations.”
AR761. PA Dylla opined that Ms. Lenning did not have the
ability to maintain socially appropriate behavior or respond
appropriately to changes in work settings. Id.
Dylla opined that Ms. Lenning would likely be “off
task” (defined as the time in a typical workday her
symptoms would be severe enough to interfere with the
attention and concentration needed to perform even simple
work-related tasks) more than 25% of the day. Id. PA
Dylla opined that Ms. Lenning would likely be absent four or
more days per month if working full-time due to her
impairments and/or treatment. Id.
Evidence Related to Mental Impairments
15, 2014, Ms. Lenning told Stacy Solsaa LPC-MH at an Employee
Assistance Program that her back injury impacted her work,
and her employer made her feel awkward using leave. On
examination, her mood/affect was frustrated, but her thought
process and orientation were otherwise normal. AR354.
19, 2014, Ms. Lenning told LPC-MH Solsaa that she continued
struggling with back pain and family problems. AR352. She was
frustrated, and her mental status examination was otherwise
August 1, 2014, Ms. Lenning was treated for depression, but
she stated she did not feel anxiety was a problem at this
time. AR427. She stated she took Ativan occasionally, did
better when she was out and about, and denied any real panic
January 4, 2015, Ms. Lenning sought emergency treatment for a
racing heart, palpitations, crying, fear and a possible
anxiety attack with fatigue from not sleeping. AR367. She
appeared anxious and slightly paranoid or bizarre. AR561.
prescribed Prozac at a follow up with her general
practitioner two days later after having a normal mood and
affect. AR367. She was told to take 10mg daily for one week,
then 20 mg. Id. After starting 20 mg Prozac, Ms.
Lenning reported being more anxious and was taking more
Ativan. AR366. She was instructed to decrease her Prozac
intake from 20 mg to 10 mg. Id.
February 3, 2015, Ms. Lenning reported her anxiety
exacerbated with worsening back pain; her depression had
improved since summer, although she experienced increased
emotional stress since Christmas and had difficulties falling
asleep. AR364. Ms. Lenning stated she had been prescribed
Celexa, but only took it a few weeks because she felt she was
improved. Id. She stated she had also stopped taking
fluoxetine because she believed it was causing uncomfortable
flashbacks and clouding her thinking. Id. Ms.
Lenning's mood was depressed and she had a flat affect,
but she had no evidence of delusion or hallucination and no
suicidal ideation. AR365. Her Patient Health Questionnaire-9
(PHQ-9) score was 5, and her Generalized Anxiety Disorder-7
(GAD-7) score was 3. Id. For her back pain, she
considered a referral to surgery, though opted to try
amitriptyline prior to having a consultation.
February 10, 2015, Ms. Lenning requested a note to stay out
of work until March 3, but Dr. Pengilly and Dr. Wagoner
stated she needed to attempt to work 20 hours per week, and,
if she could not work 20 hours per week, she would need to
see Dr. Pengilly earlier. AR363. Two days later, Ms. Lenning
stated she just could not work and she would see her
counselor and see what she thought. Id.
psychiatric diagnostic evaluation with LPC-MH Solsaa on
February 12, 2015, Ms. Lenning presented as anxious, and her
spouse reported strange behaviors; her thought process was
unremarkable and she was oriented. AR351.
next week, she attended an office visit with Rebecca L.
Pengilly, M.D., reporting anger issues, wherein she took wine
bottles out to the garage and broke but cleaned them up;
while it improved her mood it worried her husband. AR361.
After this incident, she asked her husband to stay home from
work because of her anger issues and had a panic attack in
the middle of the night that eventually improved because her
husband was present; however, an ambulance was called but she
refused to go to the ER. Id.; AR362. At the time of
the appointment, her mood had returned to normal; she was
prescribed Citalopram and Alazopram for anxiety. AR361.
March 2, 2015, Ms. Lenning was brought to Prairie St.
John's Hospital by family members after struggling with
several stressors and having difficulty functioning. AR391.
According to her family, she was down and depressed for at
least a year, with difficulty sleeping, and anxiety at night.
Id. She acted bizarre and wrote things on the walls
and doors, not making any sense at times. Id. She
was on citalopram 10 mg per day and was supposed to increase
the dose to 20 mg, but was not compliant with her medication.
Lenning was admitted for psychiatric treatment and, upon
admission, she was slowing in her emotions and responses,
with mildly impaired concentration and attention span,
psychomotor agitation, low tone and slow speech, depressed
mood, associations not intact; impaired impulse control, and
fair insight and judgment. AR409. Her memory was intact based
on unstructured clinical review, and her intelligence was
estimated as average. Id. Her capacity for
activities of daily living were independent. Id.
reported a significant history of a 20-year marriage to an
ex-husband who was very abusive physically, emotionally, and
verbally. AR409. The marriage had ended in divorce 10 years
diagnosed with major depressive disorder, recurrent, severe
with suicidal ideation; rule out schizoaffective disorder;
posttraumatic stress disorder; panic disorder; and insomnia
her hospitalization, Ms. Lenning complained about her
medications being complicated, as she was prescribed
numerous. She was afraid of being on some medications that
caused side effects; according to her family this stemmed
from a childhood misdiagnosis that resulted in her being on
medications for no clear reason. AR398. Though her
medications were explained to her, she claimed she had no
recollection of this explanation. Id.
testing revealed no memory problems, but she answered some
questions with non-related answers, which she had done during
interviews with psychiatric staff as well. Id. She
slept better in the hospital and at times was isolating and
acting bizarre, though she denied any psychotic symptoms.
discharge on March 9, 2015, Ms. Lenning denied any issues,
aside from feeling tired; upon examination, her affect was
constricted, a little brighter with interactions. AR393. She
had fluent speech with low tone and rate, and though her
thought processes were organized, logical, and goal directed,
she was slow in processing. Id. Her attention and
concentration were fair, and judgment and insight were fair
to partial. AR394. She was discharged with diagnoses of major
depressive disorder, recurrent; rule out schizoaffective
disorder; post-traumatic stress disorder; panic disorder;
rule out generalized anxiety disorder; insomnia, unspecified;
and treatment noncompliance. AR394-395. She was prescribed
BuSpar 10 mg, twice daily; Citalopram 20 mg
daily; and Seroquel 200 mg at bedtime. AR395.
after discharge, Ms. Lenning was admitted involuntarily to
the South Dakota Human Services Center on March 14, 2015, for
psychotic behavior, including writing on the walls with magic
marker, disappearing during the night to drive for 100-200
miles and return the next day, gambling, and walking into a
stranger's home and cooking. AR416; 504; 507. Prior to
admission, she made suicidal statements; in addition to the
psychiatric issues, she reported herself as being in poor
health, complaining of nausea, arthritis and headache; an
examination, however, was within normal limits. AR501-502;
admission, Ms. Lenning was assessed with a GAF of 40. AR518. She
was described as “pleasant” and “trying to
be cooperative, ” however, getting specific answers was
at times difficulty; she had disorganized and obsessive type
thinking. AR534, 536. Her attention and concentration were a
little decreased and insight was mildly decreased, though her
judgment was fair. AR536. It was difficult to interrupt her
at times when she did not want to be interrupted, but her
tone was not loud, her mood was overall mildly anxious with a
slightly restricted affect. Id.
hospitalized, she attended occupational therapy, wherein she
exhibited loosely associated content and did not respond to
peers' input. AR512-513. She was focused on
decorating/writing on materials and completely filled all
paper surfaces with symbols, words, or letters that were not
visibly related to the group topic; she typically left early
or inquired about when a group would be done. Id.;
difficulty making decisions and was unable to identify what
brought her to the hospital nearly two weeks into her stay;
her thoughts were disorganized and she was disrespectful and
demanding of staff, snapping her fingers when she did not
receive an immediate response; she was not consistent in
taking her prescribed medications. AR524-525.
application for SSDI was started and was sent to Ms.
Lenning's sister to finish while she was hospitalized.
discharge, she appeared calmer and stopped demonstrating her
unusual behaviors; however, during her review period, she
destroyed a library book and was given a bill. AR514;
526-527. She was discharged on April 6, 2015, and was sent
home with a 5-day supply of Lexapro,  BuSpar, and Restoril,
well as Risperdal. AR498; 527.
after discharge, Ms. Lenning underwent a psychiatric
evaluation with Carrie Dylla, PA-C. AR619. Ms. Lenning
reported that prior to hospitalization she had experienced
worsening depression, at which time her mother was struggling
with depression as well; her mother had been psychiatrically
hospitalized and underwent electroconvulsive therapy. AR619.
As her mother improved, Ms. Lenning reported her symptoms
became worse, and eventually led to her first
hospitalization. Id. She indicated she had not been
cooperating in taking her medications as dosed. Id.
Lenning reported at the time of PA Dylla's examination
that she was on a combination of medication she found very
helpful, and she was eating and sleeping well. Id.
She stated she was trying to fill her days with more positive
examination, Ms. Lenning's mood was stable, with a
perhaps mild constricted affect that became more expansive as
the visit progressed and better rapport was achieved. AR620.
As her insight and judgment were fair, Ms. Lenning was
assessed with a GAF of 45-50, with diagnoses of major
depression with psychotic features and dependent traits.
Lenning went to the Brown Clinic, PLLP for an evaluation with
Jon McAreavey, M.D., for memory loss on April 28, 2015.
AR416. Ms. Lenning felt she was no longer able to make good
judgments and had poor insight. Id.
Services Center (HSC) reported a dissociative or fugue
episode; when she was in the custody of law enforcement, she
had some disorganized, yet obsessive type thinking and would
at times respond to questions correctly, but at times she did
Lenning attributed her admission to Prairie St. Johns to lack
of sleep. AR738. She reported she had not slept and ended up
driving to Freeman and did not realize it. Id.
reported stressors of she and her sister were caregivers for
a cousin who passed away in December, 2014; her mother was
ill at this time; and she had also started attending AA and
started to deal with all her past abuse. AR418. She reported
feelings of guilt because of not working and had flashbacks
of morbid times, in addition to poor sleep. AR417-418. Her