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Flatequal v. Saul

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

October 2, 2019

NIKKI R. FLATEQUAL, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, Nikki R. Flatequal, 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. Flatequal has filed a complaint and motion to reverse the Commissioner's final decision denying her disability benefits and to remand the matter to the Social Security Administration for further proceedings. See Docket No. 1, 13. The Commissioner has filed his own motion seeking affirmance of the decision at the agency level. See Docket No. 17.

         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 Nikki R. Flatequal's (“Ms. Flatequal”) application for SSDI and SSI filed on February 17, 2016, alleging disability since December 31, 2015, due to a brain tumor, an open reduction internal fixation of the left clavicle, left-sided craniotomy for tumor resection, depression, anxiety, and hip and knee pain. AR211, 213, 255, 282, 285, 297. Ms. Flatequal's claim was denied initially and upon reconsideration. AR168, 177, 184. Ms. Flatequal then requested an administrative hearing. AR1191.

         Ms. Flatequal's administrative law judge (“ALJ”) hearing was held on March 16, 2018, by Lyle Olson. AR68. Ms. Flatequal was represented by other counsel at the hearing, and an unfavorable decision was issued on May 4, 2018. AR12, 68.

         At Step One of the evaluation, the ALJ found that Ms. Flatequal was insured for benefits through June 30, 2021, and that she had not engaged in substantial gainful activity (“SGA”) since December 31, 2015, the alleged onset of disability date. AR17.

         At Step Two, the ALJ found that Ms. Flatequal had severe impairments of a history of left mid-shaft clavicle fracture with non-union (status post open reduction and internal fixation); status post left posterior/frontal craniotomy for Grade I meningioma; degenerative changes, lumbar spine, with degenerative disc disease most severe at ¶ 5-S1 and moderate neural foraminal stenosis on the left at ¶ 5-S1 with mild compression of the intraforaminal left L5 nerve root; status post anterior discectomy and C5-6 fusion with degenerative retrolisthesis and moderate central spinal stenosis at ¶ 6-7, with left side radiculopathy; cervicalgia, headaches; left piriformis syndrome; fibromyalgia; neurocognitive disorder; major depressive disorder, recurrent, moderate; and an unspecified anxiety disorder. AR18.

         The ALJ found that Ms. Flatequal also had additional medically determinable impairments of osteopenia, hyperlipidemia, and diverticulitis, but found they were not severe. AR18. The ALJ found that Ms. Flatequal's borderline personality disorder was not a medically determinable impairment. AR18.

         At Step 3, the ALJ found that Ms. Flatequal did not have an impairment that met or medically equaled one of the listed impairments in 20 CFR 404, Subpart P, App 1 (hereinafter referred to as the “Listings”). AR18-21. The ALJ considered the mental impairments, and found that Ms. Flatequal had moderate limitations in understanding, remembering, or applying information, moderate limitations in interacting with others, moderate limitations with concentration, persistence or maintaining pace, and moderate limitations in adapting or managing herself, so did not meet a Listing. AR19-20.

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

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except lift and/or carry 20 pounds occasionally and 10 pounds frequently, sit with normal breaks for a total of about 6 hours in an 8-hour workday, stand and/or walk with normal breaks for a total of about 6 hours in an 8-hour workday, occasionally engage in push/pull actions (i.e., hand controls) with the left dominant hand (with no resistance greater than 20 pounds), occasionally climb ramps/stairs, balance, stoop, kneel and crouch, and never climb ladders/scaffolds, crawl, work at unprotected heights or work with dangerous moving mechanical parts. Mentally, the claimant retains the ability to understand, remember and carry out short, simple instructions, interact appropriately with supervisors and co-workers on an occasional basis and with the public on a brief and superficial basis only, respond appropriately to changes in a routine work setting, and make judgments on simple work-related decisions.

AR21.

         The ALJ's subjective symptom finding was that Ms. Flatequal's medically determinable impairments could reasonably be expected to cause the alleged symptoms, however 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.” AR23.

         The ALJ considered the opinions of the State agency initial level psychological consultant and gave them “no weight.” AR25. The ALJ considered the opinions of the State agency reconsideration level psychological consultant and gave them “great weight.” AR25. The ALJ considered the opinion of treating psychiatrist, Michael Bergan, MD, and gave his opinion “great weight.” AR26.

         The ALJ considered the opinions of the State agency medical consultants from both the initial level and reconsideration level, and gave them “no weight” because the opinions were inconsistent with the medical evidence. AR25.

         The ALJ considered the opinion of treating orthopedic physician Matthew Wingate, MD, and gave his opinion “partial weight” to the extent the opinion supported a capacity to perform light exertion work, but rejected the portions of the opinion which would restrict Ms. Flatequal to sedentary work. AR26. Dr. Wingate restricted Ms. Flatequal to lifting 10 pounds occasionally, standing or walking to no more than two hours of an 8-hour workday with alternating sitting and standing every 30 minutes due to pain, but the ALJ did not specify which of Dr Wingate's limitations supported light exertion work. AR26.

         The ALJ considered the opinion of treating physician Scott Dierks, MD, who the ALJ indicated opined that Ms. Flatequal was limited to less than a full range of sedentary work, and gave his opinions only “partial weight” because the ALJ asserted Dr. Dierks' treatment notes indicated full range of motion of extremities, appropriate muscle strength, full sensation and normal gait. AR26-27.

         The ALJ also considered the mental health opinions of treating physician Scott Dierks, MD, who the ALJ indicated opined that Ms. Flatequal had marked limitations in her ability to complete a full work day without extra breaks, and noted that the opinion was consistent with Ms. Flatequal's alleged symptoms, but inconsistent with Dr. Bergan's opinions. The ALJ did not state what, if any, weight he gave Dr. Dierks' opinions regarding Ms. Flatequal's mental limitations. AR27.

         Based on the RFC, the ALJ found that Ms. Flatequal was not capable of performing her past relevant work. AR27.

         The ALJ stated in his decision:

At the hearing, the undersigned asked the vocational expert to assume a hypothetical for an individual with the residual functional capacity as previously determined by the undersigned in this decision. When asked whether such a hypothetical individual could perform any of the claimant's past relevant work, the vocational expert testified such an individual could perform the claimant's past work at the semiskilled and skilled levels. However, the undersigned finds that the claimant's mental residual functional capacity is more consistent with an individual limited to unskilled work that precludes the mental demands of the claimant's past relevant work.

AR27. However, the asserted question by the ALJ and asserted answer by the vocational expert does not appear any where in the hearing transcript. AR66-114. The vocational expert did affirm in response to the ALJ's question that Ms. Flatequal's past work would be excluded. AR108.

         At Step 5, the ALJ found Ms. Flatequal capable of adjusting to other work that existed in significant numbers, such as copy machine operator, DOT# 207.685-014; mail clerk, DOT# 209.687-026; and clerical checker, DOT# 222.687-010, relying on testimony from the vocational expert regarding the number of jobs available for each occupation nationally and denied the claim. AR28-29.

         Ms. Flatequal timely requested review by the Appeals Council. AR209. The Appeals Council denied Ms. Flatequal's request for review, making the ALJ's decision the final decision of the Commissioner. AR1-5.

         B. Plaintiff's Age, Education and Work Experience.

         Ms. Flatequal was born in 1966 making her 49 years old at the onset of disability and turning age 50, a person closely approaching advanced age, in October, 2016. AR27, 211. She completed four or more years of college in 1989. AR256. The ALJ found that Ms. Flatequal had multiple past relevant jobs at both the skilled and semi-skilled level. AR27.

         C. Relevant Medical Evidence. 1. Avera McGreevy Clinic:

         Ms. Flatequal saw Dr. Dierks, her primary care physician, on May 4, 2015, and the psychological exam indicated no evidence of anxiety or depression, but her Celexa dosage was increased for her depression at her request. AR689-90. When seen again on May 7, 2015, the treatment note stated she has recently been seen for depression. AR681. She had been having chronic abdominal pain, which had been evaluated by a gastroenterologist with no resolution. AR682-83.

         Chart notes for January 4, 2016, indicate that Ms. Flatequal called and informed the clinic she had fallen on the ice on December 31, 2015, fracturing her skull and collar bone, and a CT scan obtained as a result revealed a brain tumor. AR420. The CT scan obtained on December 31, 2015, following her fall revealed prior post-operative changes from C5-C6 that is solidly fused and diffuse degenerative changes. AR489. Other images of the left shoulder revealed a displaced overriding mid left clavicle fracture. AR489.

         Ms. Flatequal saw Dr. Dierks on March 5, 2016, following surgery to repair her collar bone due to some swelling at the incision site, and she was also scheduled for brain surgery for her tumor. AR649.

         Ms. Flatequal saw Dr. Dierks on June 15, 2016, for a physical and right hip and right knee pain, and she continued to have pain in her left clavicle. AR872, 874. X-rays were planned for her hip and knee and the scar on her shoulder was to be excised. AR878.

         Ms. Flatequal saw Dr. Dierks on August 8, 2016, to follow up on her elevated blood pressure and worsening pain in both hips. AR844. Dr. Dierks felt that Ms. Flatequal's prior hip x-ray had shown a little arthritis and she had started on naproxen initially as needed and now daily. AR849. Examination revealed pain to palpation and swelling on the right over the iliac crest, and she was referred to orthopedics for her hip pain. AR849.

         Ms. Flatequal saw Dr. Dierks on October 31, 2016, to follow up on her ongoing hip pain. AR841. She had been to orthopedics and an MRI did not reveal the cause of the pain, she continued taking naproxen, and had tried chiropractic treatment without relief, and was having fatigue. AR841. Examination revealed a little pain and swelling over the SI joint, the right lower back, and the paraspinal muscle area. AR842. Naproxen was stopped and she was referred for physical therapy. AR842.

         Ms. Flatequal saw Dr. Dierks on June 7, 2017, for neck, hip, right ankle pain, and a painful lump over her left axilla area. AR966. Her back pain was bilateral in the lower back and hip area and was relatively constant but worse with bending. AR966. Examination revealed tenderness over the C7 to T1 area, trapezius muscle tenderness, a very tender subcutaneous nodule in her left axilla, tenderness in the lower back bilaterally over her SI joints, and a focal small slightly boggy swelling over the right lateral malleolus with tenderness and bruising. AR971-72. An HLA-B27 blood test was ordered and x-rays of the lower back and cervical area were ordered. AR972. Lumbar spine x-rays revealed mild spondylosis. AR1188. Cervical spine x-rays revealed anterior interbody fusion at the C5-6 level, degenerative disc changes at ¶ 4-5 and C6-7, and mild degenerative facet changes. AR1187. On June 19, 2017, she was seen again, at which time her depression score was positive and physical therapy was prescribed for her neck. AR957, 964.

         Ms. Flatequal saw Dr. Dierks on September 18, 2017, for her ongoing neck pain and myalgias, following her appointment with Dr. Wingate, an orthopedic surgeon, who had recommended EMG testing as well as evaluation for fibromyalgia. AR949. Gabapentin was prescribed and she was referred to rheumatology. AR954. A DEXA bone scan obtained on September 20, 2017, revealed low bone density, significantly decreased since 2015, but not osteoporosis. AR1186.

         Ms. Flatequal saw Dr. Dierks on November 20, 2017, for a preoperative exam prior to breast reduction surgery. AR1126. Dr. Dierks noted that Ms. Flatequal had just had hardware removed from her collarbone, had been diagnosed with fibromyalgia, and given her struggles with back and neck pain he felt the breast reduction surgery was a good plan. AR1126, 1128. Her Tramadol medication was refilled for pain. AR1128.

         Ms. Flatequal saw physician's assistant Travis Slaba[3] on November 22, 2017, for significant clavicle pain following a pop over her left clavicle when reaching to pick something up. Examination revealed an inability to shrug her shoulders, significant decreased range of motion of the left shoulder, and severe discomfort on palpation of mid clavicle. AR1117. X-rays revealed a left clavicle fracture. AR1118. A sling, Toradol for pain, and a referral to the orthopedic clinic were given. AR1118.

         Ms. Flatequal saw Dr. Dierks on December 20, 2017, to follow-up on her fibromyalgia, which she reported was worse, and water therapy was prescribed. AR1096, 1103.

         On February 6, 2018, Dr. Dierks examined Flatequal and completed a medical source statement regarding her ability to physically function during a full-time workday. AR1193-95. Dr. Dierks opined that Ms. Flatequal would be limited to lifting less than 10 pounds occasionally or frequently, standing or walking less than two hours in an 8-hour workday, and she would need an option to alternate to a standing position every 30 minutes while sitting. AR1193. Dr. Dierks stated that Ms. Flatequal was limited in pushing or pulling in both her upper and lower extremities due to her shoulder, hip, and back issues, and she was limited to only occasional reaching, and frequent handling, fingering, and feeling. AR1194.

         On February 6, 2018, Dr. Dierks examined Ms. Flatequal and completed a medical source statement regarding her mental ability to do basic work activity on a sustained, regular and continuing basis. AR1189-92. Dr. Dierks identified moderate limitations in identifying and solving problems, sequencing multi-step activities, using judgment to make work-related decisions, ability to keep social interactions appropriate, complete tasks in a timely manner, ability to ignore or avoid distractions, sustain an ordinary routine and regular attendance, and to adapt to change. AR1189-91. Dr. Dierks also identified marked limitations in Ms. Flatequal's ability to work a full day without needing more than the allotted number or length of rest breaks during the day and in her ability to manage her psychologically based symptoms. AR1191.

         2. Avera Rheumatology Clinic:

         Ms. Flatequal saw rheumatologist Jenna King, DO, on November 13, 2017, for evaluation of myalgias. AR900. Ms. Flatequal had already been started on gabapentin, but reported not noticing much difference with it, and had been tested for autoimmune disease and was found to have a negative rheumatoid factor CCP and HLA-B27. AR900. Ms. Flatequal was suffering from fatigue, sleep problems, pain, headaches, anxiety/depression, morning stiffness, tingling in her hands, IBS, spastic colon, cervical and lumbar osteoarthritis and myalgias. AR900. Ms. Flatequal was scheduled for a C7 nerve block injection the following week and a piriformis injection. AR900. Ms. Flatequal also reported having a lot of disorientation, and wasn't sure if that was due to the brain surgery for her tumor, and significant left hip pain. AR901, 903. Examination revealed full range of motion for all extremities, no joint swelling, normal reflexes, intact movement, normal sensation, and 11/18 muscle tender points. AR907. Dr. King's assessment was fibromyalgia, degenerative joint disease, and anxiety/depression. AR907. Dr. King stated that Ms. Flatequal had widespread pain with at least 11 out of 18 muscle tender points consistent with fibromyalgia, and recommended a combination of gabapentin, Cymbalta, and Flexeril. AR908.

         3. Avera Neurosurgery Clinic:

         Ms. Flatequal had brain surgery on March 30, 2016, to remove a small left posterior frontal dural-based meningioma. AR468-70, 606, 618. She was discharged from the hospital on April 3, 2016. AR464.

         Ms. Flatequal was seen on July 14, 2016, for follow-up to her tumor surgery and reported having several psychiatric complaints, which were being addressed by her psychiatrist, and fatigue, poor energy level, and a sensation of “disconnect.” AR745. She did not feel she was able to return to work.[4]AR745. An MRI obtained the same day revealed no evidence of tumor reoccurrence. AR747.

         Ms. Flatequal had a 24-hour video EEG on December 27, 2016, due to spells of alteration of awareness, which was normal. AR1031.

         Ms. Flatequal was seen on September 12, 2017, for a nerve conduction test due to bilateral hand pain and paresthesia, which revealed no convincing evidence of radiculopathy, plexopathy or mononeuropathy affecting the extremities. AR1033.

         Ms. Flatequal saw neurologist Todd Zimprich, MD, on November 7, 2017, for evaluation of a cognitive disorder with spells of disorientation, memory difficulties, tremors, and weakness in the upper extremity, and headaches. AR984. Dr. Zimprich stated Ms. Flatequal's cognitive disorder was likely due to mental distraction. AR986. Ms. Flatequal saw Dr. Zimprich again on November 11, 2017, to test results which failed to identify an etiology for her neurologic symptoms. AR988. Dr. Zimprich noted that Ms. Flatequal was anxious with pressured speech, and she had a low amplitude, high frequency tremor in her bilateral upper extremities. AR988.

         Ms. Flatequal saw Dr. Zimprich on November 22, 2017, for follow-up evaluation of a cognitive disorder with tremors and headaches, and spells of “disorientation.” AR978. Ms. Flatequal complained of decreased energy, difficulty sleeping, depression/anxiety, left hip pain, lightheadedness, memory loss, headaches, left hand weakness, and left arm and leg paresthesias. AR978. Dr. Zimprich's assessments included migraines, stable; tremors, well-managed; meningioma with no clear residual, but some somatic symptoms may be associated; and cognitive disorder, likely multifactorial with a significant element associated with Ms. Flatequal's psychiatric disease and prior alcohol use, and may be a mild element associated with the meningioma. AR977.

         4. Orthopedic Institute

         Ms. Flatequal was seen on January 4, 2016, at Orthopedic Institute for a left mid-shaft clavicle fracture. AR702. Due to swelling and edematous, surgical intervention was not scheduled. AR702. Follow-up on January 15, 2016, showed restricted shoulder motion with significant pain with motion. AR701. Imaging revealed a displaced and shortened mid-shaft clavicle fracture and surgery was planned. AR701. Ms. Flatequal underwent an open reduction and internal fixation of the left midshaft clavicle on January 26, 2017. AR700, 704. Follow-up the following week showed she continued on pain medication but was doing well. AR699.

         Ms. Flatequal was seen on March 9, 2016, for follow-up on her clavicle fracture and continued to do well, and had been essentially pain free over the clavicle and had full motion. AR698. On May 25, 2016, Ms. Flatequal was referred for physical therapy due to left shoulder pain and weakness, and limited range of motion. AR709. On June 10, 2016, Ms. Flatequal reported that she had some anterior shoulder soreness and tingling, but no pain in the shoulder, and her home therapy was going well. AR812.

         Ms. Flatequal was seen on October 7, 2016, for right hip/buttock pain and weakness. AR801. Examination revealed diffuse pain with palpation over the gluteus musculature. AR801. Imaging revealed no abnormalities and she was referred for physical therapy. AR801-02.

         Ms. Flatequal was seen on November 4, 2016, for physical therapy evaluation of right hip/buttock pain and weakness. AR810. Therapy continued through December [2016][5] and by December 14, 2016, Ms. Flatequal was not able to tolerate a stationary bike at level 3 for longer than four minutes. AR811.

         Ms. Flatequal received a left piriformis injection and a cervical epidural steroid injection at Avera Hospital on November 14, 2017, by referral from Dr. Wingate. AR1344. She received the injections for neck and left upper extremity pain that radiated into her left hand with numbness and tingling to the fingers. AR1344. Ms. Flatequal's pain was aggravated by activity. AR1344. Imaging revealed degenerative retrolisthesis leading to moderate central canal stenosis at ¶ 6-C7 in addition to her prior fusion at ¶ 5-C6. AR1344. Examination revealed Ms. Flatequal was pacing and rearranging chairs and her belongings, and she even needed to get up and do several small tasks during the interview process. AR1344. Her cervical spine, paraspinous musculature, trapezius, and rhomboid were all tender to palpation, and the left greater trochanter into the piriformis and gluteal musculature were also tender. AR1344.

         Ms. Flatequal underwent a revision open reduction and internal fixation of her left clavicle on November 29, 2017, performed by Dr. Wingate. AR1361. Ms. Flatequal had a plate and screw removed from her prior clavicle surgery a couple weeks earlier due to hardware prominence and she refractured her clavicle. AR1362.

         Ms. Flatequal was referred by Dr. Wingate to Midwest Pain Specialists for a left SI joint injection administered on December 22, 2017, due to buttock discomfort and SI joint pain on the left side. AR1044.

         Ms. Flatequal was seen on March 1, 2018, by Dr. Wingate for follow-up on her left clavicle. AR1376. She had the plate removed which had been put in at her initial shoulder surgery, and following removal she refractured the clavicle. AR1376. Dr. Wingate stated that he had also been seeing her for buttock, leg and back symptoms and she had been through multiple rounds of physical therapy, SI joint injections, epidural injections, and anti-inflammatory medications. AR1376.

         Ms. Flatequal reported that her shoulder was doing well, but was concerned about her low back and buttock. AR1376. She had received a L5-S1 transforaminal epidural steroid injection on February 2, 2018, which had given her 100% relief, but only for a week. AR1376. She had pain in the L5 distribution and numbness and tingling all the way down to her foot. AR1376. Imaging revealed lumbar spondylosis, L5-S1 disc breakdown, degeneration of facet arthrosis and facet hypertrophy that causes foraminal stenosis on the left at ¶ 5-S1. AR1376.

         Dr. Wingate stated Ms. Flatequal “has really been though everything” and discussed various surgical options. AR1376. A new lumbar MRI was ordered, and revealed lumbar degenerative disc disease most severe at ¶ 5-S1 without significant central canal stenosis and moderate neural foraminal stenosis on the left at ¶ 5-S1 with mild cord compression of the intraforaminal left L5 nerve root. AR1376, 1381.

         On March 7, 2018, Dr. Wingate completed a medical source statement regarding Ms. Flatequal's physical functioning and stated she was limited to occasionally lifting 10 pounds, frequently lifting less than 10 pounds, standing and walking less than two hours in an 8-hour workday, and she must alternate sitting and standing every 30 minutes to relieve pain or discomfort. AR1377. Dr. Wingate also limited her to occasional balancing, kneeling and crouching and frequent reaching, handling and fingering. AR1378. Dr. Wingate stated that he had not given her formal restrictions, and his recommendations were based on diagnosis and her currently physical state, including a healed clavicle fracture. AR1379.

         5. Avera Behavioral Health

         Ms. Flatequal was admitted to Avera Behavioral Health on an involuntary hold following a suicide attempt on July 24, 2015. AR589. Her admission diagnoses included major depressive disorder, suicide attempt, alcohol intoxication and use disorder, and unspecified anxiety disorder. AR589. Her treatment notes indicate that Ms. Flatequal had a history of a prior suicide attempt and inpatient treatment in 2005. AR589, 593. Ms. Flatequal requested discharge when the involuntary hold was lifted on July 26, 2015, and was released. AR590. She was noted to have limited insight on her problems, and it was recommended she follow-up with psychology and counseling. AR590-91.

         Ms. Flatequal participated in group and individual therapy for substance addiction at Avera beginning in August, 2015 and continuing through October, 2015. AR524-58. The initial diagnostic interview indicated Ms. Flatequal had previously received treatment for gambling addiction, lack of coping skills, stress management, and poor impulse control. AR558.

         6. Avera University Psychiatry Associates

         Ms. Flatequal saw Dr. Bergan at Avera University Psychiatry Associates on May 24, 2016, for depression. AR728. Ms. Flatequal reported mood swings, feelings of emptiness, and periods of impulsiveness. Ms. Flatequal reported prior suicide attempts by overdose resulting in stomach pumping, and closing her eyes and turning the wheels of her car resulting in a crash with both attempts occurring in the 1990's. AR729. She also reported shoulder/neck tension all the time, and being easily irritated on a daily basis. AR730. Ms. Flatequal reported a history that included her parents getting married and divorced twice, her mother leaving and never returning at age 13, being beat up by four men in college, giving birth to stillborn twin sons, a history of gambling addiction, multiple other miscarriages, inpatient treatment for alcoholism, divorce, and being robbed and tied up at gunpoint at a casino. AR730. Ms. Flatequal was diagnosed with major depressive disorder, moderate; alcohol use disorder, moderate; unspecified anxiety disorder; and borderline personality traits. AR731. Duloxetine was prescribed along with her current trazodone, and she was referred to the STEPPS program. Her mental status exam revealed dysphoric and anxious mood, fair insight and judgment. AR735-36.

         Ms. Flatequal saw Dr. Bergan on June 28, 2016, and reported worrying whether a potential job would interfere with her ability to complete the STEPPS program. AR719.

         Ms. Flatequal saw Dr. Bergan on October 7, 2016, for follow-up. AR783. Ms. Flatequal reported she had started the STEPPS program, but stopped when her father became ill, then restarted. AR783. She was seeing Chris Pudwill twice a month at Avera 33rd and Cliff, and she had an appointment with Carol Kuntz for neuropsychiatric testing. AR783. Dr. Bergan stated Ms. Flatequal had created a self-fulfilling prophecy that she can't work, and he did not know whether she actually could or not. AR785. Dr. Bergen increased her duloxetine dosage. AR786.

         Ms. Flatequal participated in the STEPPS therapy program at Avera from October 24, 2016, through November 29, 2016. AR1284-1321.

         Ms. Flatequal was referred for a psychological evaluation at Great Plains Psychological Services on November 2, 2016, for an evaluation of cognitive and psychological functioning due to forgetfulness following her craniotomy and tumor resection the prior March, and she also complained of left-handed shakiness, fatigue, brief spells of lightheadedness, numb tingly left shoulder, as well as multiple joint aches and headaches. AR755.

         Dr. Whitten found that her mood/behavior was impaired and her psychomotor response was questionable. AR755. Dr. Whitten found no neuropsychological signs of her left hemisphere lesion lingering. AR756. Dr. Whitten stated that similar individuals to Ms. Flatequal find returning to work a struggle, and cautioned the use of opioids, analgesics, benzodiazepines, and stimulant medications for pain control due to potential addiction issues. AR756.

         Ms. Flatequal saw Dr. Bergan on November 3, 2016, for follow-up. AR774. Ms. Flatequal rated her mood 4/10, energy level was really bad, concentration not so good, and said her anxiety was terrible. AR774-75. She reported that she continued to see Chris Pudwell[6] every two weeks.

         Ms. Flatequal saw psychologist David Hylland on November 30, 2016, for a psychological evaluation. AR794. Ms. Flatequal reported she had tried about seven meetings at the STEPPS program but decided it would not work for her. AR794. She saw Dr. Hylland again on December 12, 2016, and he had obtained and reviewed the prior evaluation from Dr. Whitten. AR792. Dr. Hylland stated the test results showed that Ms. Flatequal had significant depression with anxiety, and it “shows that it is going to be very unlikely that she would have any success trying to carry on any type of occupation because of her depression and anxiety and her focus on the health that she has to keep staying on top of.” AR792.

         Ms. Flatequal saw Dr. Bergan on December 8, 2016, for follow-up. AR765. Ms. Flatequal rated her mood 5/10, was attending physical therapy for her hip, and concentration not very good. AR765-66. She had stopped seeing Chris Pudwell and was now seeing Dr. Hylland for individual therapy. AR768.

         Ms. Flatequal saw Dr. Hylland on January 11, 2017, for therapy and discussed her disability application. AR934. Dr. Hylland stated, “…which I certainly believe she is qualified to receive.” AR934. Dr. Hylland stated, “I hope that she does pursue the appeal of the social security disability denial because I think she certainly is incapable of having any type of full time job right now, or even part time, with her mental state and her physical health.” AR934.

         Ms. Flatequal saw Dr. Hylland on February 8, 2017, and again on March 8, 2017. AR932-33. At the March appointment, she was very emotionally upset, very anxious, and quite tearful. AR932. She had been denied disability again. AR932.

         Ms. Flatequal was brought to Avera Behavioral Health by the police on March 30, 2017, due to some anxiety issues. AR1326. Ms. Flatequal's husband called the police when he felt she took some pills. AR1326. She said it was a couple of ibuprofen, and that she was not suicidal. AR1326. Ms. Flatequal was observed to be quite tearful, worried, and anxious, and reported she was seeing a counselor. AR1326-27.

         Ms. Flatequal saw Dr. Hylland for therapy on May 8, 2017, who stated again that he felt Ms. Flatequal met the criteria for being disabled from a mental health standpoint and probably from a ...


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