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Lenning v. Berryhill

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

July 22, 2019

JAN LENNING, 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, 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 Act.[1]

         Ms. 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.

         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. Procedural History

         Ms. Jan 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, 2017. AR34-69.

         Upon 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. AR26-27.

         Ms. 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.

         The ALJ 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 impairment. Id.

         The ALJ 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.

         The ALJ 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.

         B. Relevant Medical Evidence

         1. Medical Opinion Evidence

         On 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.

         State 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.

         State 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.

         On 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.

         On June 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.[3] She stated she first started treating Ms. Lenning on April 7, 2015. AR757. PA Dylla offered a guarded prognosis. Id.

         PA 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.

         PA 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.

         PA 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.

         PA Dylla identified on the form the following sign of general anxiety disorder: motor tension. Id.

         PA Dylla identified on the form the following sign of schizophrenia: delusions or hallucinations. Id.

         PA 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.

         PA 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.

         PA 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.

         PA 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. AR759-760.

         Markedly 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 fair. Id.

         PA 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. Id.

         PA 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.

         PA 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.

         2. Evidence Related to Mental Impairments

          On May 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.

         On June 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 unremarkable. AR352.

         On 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 attacks. Id.

         On 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.

         She was 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.

         On 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[4] prior to having a consultation. Id.

         On 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.

         At a 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.

         The 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.

         On 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. Id.

         Ms. 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.

         She 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 earlier. Id.

         She was diagnosed with major depressive disorder, recurrent, severe with suicidal ideation; rule out schizoaffective disorder; posttraumatic stress disorder; panic disorder; and insomnia disorder. AR410.

         Throughout 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.

         Cognistat 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. AR401.

         Upon 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[5] 10 mg, twice daily; Citalopram 20 mg daily; and Seroquel[6] 200 mg at bedtime. AR395.

         Shortly 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; 516.

         Upon admission, Ms. Lenning was assessed with a GAF[7] 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.

         While 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.; AR513.

         She had 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.

         An application for SSDI was started and was sent to Ms. Lenning's sister to finish while she was hospitalized. AR526.

         Upon 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, [8] BuSpar, and Restoril, [9] as well as Risperdal.[10] AR498; 527.

         The day 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.

         Ms. 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 activities. Id.

         Upon 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. Id.

         Ms. 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.

         Health 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 not. Id.

         Ms. 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.

         She 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 ...


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