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Ortman v. Saul

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

December 13, 2019

JANN ORTMAN, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.




         Plaintiff, Jann Ortman, seeks judicial review of the Commissioner's final decision denying her application for social security disability benefits under Title II of the Social Security Act.[1]

         Ms. Ortman 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).


         A. Statement of the Case

         This action arises from plaintiff Jann Ortman's (“Ms. Ortman”) application for Social Security Disability Income benefits (“SSDI”) filed on June 27, 2016, alleging disability since May 15, 2015, due to multiple sclerosis (“MS”), herniated cervical disc, lost concentration, fatigue, brain fog, headaches, leg tremors, jumpy restless legs, muscle aches and pains, anxiety, panic attacks, over active bladder and fibromyalgia. AR162, 213, 235-36, 242, 274.

         Ms. Ortman's claim was denied initially and upon reconsideration. AR124, 130. Ms. Ortman then requested an administrative hearing. AR140.

         Ms. Ortman's administrative law judge hearing was held on May 7, 2018, by Richard Hlaudy (“ALJ”). AR57. Ms. Ortman was represented by an attorney other than her current counsel at the hearing, and an unfavorable decision was issued on August 9, 2018. AR9, 55.

         At Step One of the evaluation, the ALJ found that Ms. Ortman was insured for benefits through December 31, 2020, and that she had not engaged in substantial gainful activity (“SGA”) since May 15, 2015, the alleged onset of disability date. AR14.

         At Step Two, the ALJ found that Ms. Ortman had severe impairments of MS, cervical degenerative disc disease, and fibromyalgia; finding that each of those medically determinable impairments significantly limited Ms. Ortman's ability to perform basic work activities. AR14.

         At Step Three, the ALJ found that Ms. Ortman did not have an impairment that met or medically equaled one of the listed impairments in 20 C.F.R. 404, Subpart P, App 1 (hereinafter referred to as the “Listings”). AR14. The ALJ noted that there is no “direct listing” pertaining to some of Ms. Ortman's impairments, including fibromyalgia. AR15. The ALJ found that the “evidence does not establish the medical signs, symptoms, laboratory findings, or degree of functional limitation required to meet or equal the criteria of any listed impairment. . . .” AR15.

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

less than a full range of light work as defined in 20 CFR 404.1567(b). The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and walk 6 hours in an 8-hour workday and can sit 6 hours in an 8-hour workday. She can occasionally climb ramps and stairs, but can never climb ladders, ropes or scaffolds. She can frequently balance and occasionally stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to extreme cold, extreme heat, extreme vibration, and workplace hazards. The claimant is incapable of sitting or standing for more than an hour and she must alternate between sitting and standing every hour.


         The ALJ's subjective symptom finding was that Ms. Ortman's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, her statements concerning the intensity, persistence and limiting effects of the symptoms were not “entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR16.

         The ALJ considered the opinions of the State agency medical consultants, who opined that Ms. Ortman could perform medium work, and gave them little weight; rejecting their assessments because the record did reflect that Ms. Ortman became fatigued with over-exertion, which is more consistent with a RFC to perform work at a light exertional level. AR19.

         The ALJ considered and gave partial weight to the opinions of treating physician Christopher Boschee, D.O., who the ALJ indicated had opined that Ms. Ortman could occasionally lift 20 pounds and frequently lift less than 10 pounds; only stand/walk or sit less than 2 hours in an 8-hour work day; sit less than 2 hours in an 8-hour workday; frequently climb ramps; never climb stairs; rarely balance, stoop, kneel and crouch; frequently reach/handle; occasionally finger/feel; avoid exposure to extreme cold, heat and hazards; and avoid concentrated/moderate exposure to wetness and humidity. AR19. The ALJ stated the lifting limitations were “similar” to the RFC he had determined, but the sitting and standing limitations were “inconsistent with general normal physical exams of the claimant and her admitted levels of daily living activities.” AR19. The ALJ also noted that Dr. Boschee stated in September, 2016, that Ms. Ortman was disabled due to her multiple sclerosis and resultant weakness and fatigue. AR19.

         The ALJ stated, in summary, the RFC he determined was supported by the medical treatment records that reflected Ms. Ortman's “multiple sclerosis was stable with medication and resulted in ‘minimal functional deficits.' It is further supported by minimal findings from mental status and physical exams of the claimant, which observed her memory, concentration and judgment remained normal and that she retained full strength, sensation, balance, range of motion, and a normal gait” and some support from her activities of daily living (ADLs) such as no difficulty with personal care and her ability to cook, clean and do housework. AR19-20.

         Based on the RFC determined by the ALJ, the ALJ found Ms. Ortman was capable of performing her past relevant work as a teacher's aide and a cashier, and denied her claim. AR20.

         Ms. Ortman timely requested review by the Appeals Council, and the Appeals Council denied Ms. Ortman's request for review, making the ALJ's decision the final decision of the Commissioner. AR1-4, 161.

         B. Plaintiff's Age, Education and Work Experience

         Ms. Ortman was born in August of 1962, and she completed the 12th grade in 1980. AR162, 214.

         The ALJ found that Mr. Ortman had past relevant work as a teacher's aide, Dictionary of Occupation Titles (DOT) #249.367-074, and as a cashier, DOT #211.462-010. AR20, 89-92.

         C. Relevant Medical Evidence (chronological sequence)

         Ms. Ortman was seen at the Neurology Clinic on April 10, 2015, to follow-up on her relapsing MS. AR346. She had been experiencing right leg pain below the knee that began about 5 days previously. AR346. About 8 years earlier she had weakness in the left foot for three days. AR346. Ms. Ortman had been taking the prescribed medication Rebif for the previous 11 years for treatment of MS. AR346. Areen Said, M.D., observed that Ms. Ortman's history of MS had been clinically stable. AR346. Dr. Said documented normal clinical examination findings for Ms. Ortman except for discomfort on palpation of the medial aspect of her right leg just below the knee. AR346. Dr. Said recommended a magnetic resonance imaging (MRI) of Ms. Ortman's brain and c-spine and an ultrasound of her left lower extremity. AR347.

         Ms. Ortman was seen for chiropractic treatment for her right leg pain on April 11, 2015. She described the pain as acute aching, dull and tingling discomfort radiating into her upper and lower leg to her right foot and located in the lumbosacral joint. AR300. She was unable to sit and work because that activity caused upper and lower leg pain and numbness when attempted for more than five minutes. AR302.

         Ms. Ortman was seen at the Neurology Clinic on May 28, 2015, to follow-up on her relapsing MS. AR335. MRIs revealed multiple high signal abnormalities in the periventricular and deep white matter in her brain consistent with demyelinating disease consistent with MS. AR335, 338. Ms. Ortman also had high signal abnormality at ¶ 2-C3 and mild to moderate disk bulge at ¶ 6-C7. AR335, 339. Dr. Said noted that Ms. Ortman was overall doing well and was having no symptoms that day. AR335. Dr. Said also documented normal clinical examination findings. AR336. Dr. Said's assessment was relapsing remitting MS stable on Rebif[3]. AR336.

         Ms. Ortman was seen for chiropractic treatment for her chest and mid-thoracic spine on July 27, 2015. AR307. Ms. Ortman stated that she did not have any problems completing ADLs. AR307.

         Ms. Ortman was seen for chiropractic treatment for continued tightness in her mid back on October 1, 2015. AR309.

         Ms. Ortman was seen for chiropractic treatment for continued tightness in her mid-back on February 9, 2016. AR311.

         Ms. Ortman saw Dr. Boschee on May 25, 2016, reporting chest congestion, lethargy, abdominal cramping, back pain, urinary frequency, and being unable to get motivated and stay focused. AR394. She was starting to feel better so no further workup or treatment was taken. AR395. Ms. Ortman was seen for chiropractic treatment for her back on May 27, 2016. AR366.

         Ms. Ortman saw Krista M. Hoyme, D.O., on June 10, 2016, for low-back pain and vaginal burning, which started weeks ago but had gotten worse, and she had just completed a 5-day dose of steroids. AR392. Dr. Hoyme documented normal clinical examination findings except for significant atrophic findings in the vaginal vault. AR393. Dr. Hoyme prescribed medication for treatment. AR392.

         Ms. Ortman saw neurologist Elizabeth Kruse, M.D., at Neurology Associates on June 1, 2016, to follow-up on her MS. AR372. She had been off work since September but recently returned to work due to financial pressure. AR372. Ms. Ortman reported aching and “humming” in her arms by the fifth day of work, being exhausted, having bilateral tingling in her feet, increased urinary urgency, and feeling pressure in her chest. AR372. She reported feeling “lifeless.” AR372. Dr. Kruse documented normal neurological examination findings. AR373. Additional imaging was discussed but Ms. Ortman was hesitant to due the cost. AR374. Dr. Kruse prescribed prednisone. AR374.

         Ms. Ortman saw Dr. Boschee on September 1, 2016, to follow up on her MS and discuss disability. AR387. Dr. Boschee had previously recommended to Ms. Ortman that she should be evaluated for disability. AR387. Dr. Boschee stated that he felt Ms. Ortman should appeal her disability denial because he felt she was disabled due to the weakness and fatigue caused by the MS. AR387. Dr. Boschee explained that Ms. Ortman had MS that caused weakness in her right leg and right arm; periodic weakness throughout her body; had difficulty getting words and thought processes in order; and was recently having urinary problems. AR387. These conditions have progressed to where performing a full-time job would be very difficult. AR387.

         Dr. Boschee noted that Ms. Ortman really wanted to work and to be productive, but she gets very fatigued when she tries. AR387. She reported that when she works a few days she becomes very fatigued for the next couple of days requiring her to call in sick “quite a bit.” AR387. Examination revealed weakness to her right leg and right arm and bilateral hand weakness. AR388. Ms. Ortman reported she gets a “fogginess” when trying to think. AR387. Ms. Ortman had also been to the urologist due to urinary issues and they were believed to be caused by her MS. AR383, 387. Brian Lindaman, M.D., discussed additional medication options with Ms. Ortman. AR383.

         Ms. Ortman saw Dr. Boschee on May 25, 2017, for a physical and referral to her neurologist. AR406. Her assessments included MS and chronic pain syndrome for which Cymbalta was prescribed, and Dr. Boschee noted she may have fibromyalgia. AR407.

         Ms. Ortman saw neurologist Efrat Feldman, M.D., at Neurology Associates on July 17, 2017, to follow-up on her MS. AR413. Ms. Ortman continued on Rebif injections three times per week without side effects and reported no physical flares of the MS, but she reported fatigue, memory and confusion problems. AR413. She had received oral steroids the prior week for fatigue, and had been diagnosed with fibromyalgia a month earlier. AR413. Dr. Feldman noted a history of a broken neck in 1997. AR414. Dr. Feldman documented normal clinical findings. AR415-16. Ms. Ortman denied depression AR413. Additional imaging was discussed but Ms. Ortman rejected it due to costs. AR416. Dr. Feldman encouraged Ms. Ortman to establish a fitness plan including walking, Pilates and yoga. AR416. Dr. Feldman also discussed smoking cessation with Ms. Ortman. AR416.

         Ms. Ortman saw neurologist Dr. Feldman on February 26, 2018, to follow up on her MS. AR418. She reported poor energy level, chronic numbness in her lower extremities, chronic muscle spasms in her legs, unsteady balance, bladder incontinence, restless legs, and fair mood and cognition. AR418. Ms. Ortman described “mind fog, ” fatigue and decreased motivation. AR419. Dr. Feldman documented normal examination findings except for positive Romberg with swing to the right side. AR421. Dr. Feldman recommended current imaging but Ms. Ortman explained she could not afford the tests, and continued to decline after Dr. Feldman offered social worker involvement. AR422. Dr. Feldman prescribed Provigil.[4] AR422. Dr. Feldman counseled Ms. Ortman on smoking cessation.

         On April 29, 2018, Dr. Boschee completed a medical source statement as to Ms. Ortman's limitations if she attempted full-time work. AR425-27. Dr. Boschee opined that she would be limited to lifting 20 pounds occasionally and less than 10 pounds frequently; standing and/or walking less than 2 hours per 8-hour workday with normal breaks; and sitting less than 2 hours per 8-hour workday; never climbing ladders and scaffolds; frequently climbing ramps and stairs; limited vision for near acuity, far acuity, depth perception, and accommodation; avoiding all exposure to extreme cold, extreme heat, fumes odors, dusts, gases, and poor ventilation; avoiding moderate exposure to humidity; avoiding concentrated exposure to wetness; and avoiding all exposure to hazards, machinery, and heights. AR425. Dr. Boschee also limited her pushing and pulling in the upper and lower extremities, and stated she could only rarely balance, stoop, kneel, and crouch in a work setting. AR426. Dr. Boschee also limited Ms. Ortman to frequent reaching and handling, and only occasional fingering and feeling. AR426. Dr. Boschee explained that Ms. Ortman's fatigue from her MS would progress over the day and that her fingers tingle and get worse as she tires. AR426.

         D. State Agency Assessment

         State agency physician consultants at the initial level on August 26, 2016, opined that Ms. Ortman had severe MS and a herniated bulged disc in her neck, and that she could perform medium exertion work. AR100-10. The state agency physician consultants at the reconsideration level on January 14, 2017, made similar findings. AR110-23.

         E. Testimony at ALJ Hearing

         1. Ms. Ortman's Testimony

         Ms. Ortman testified that she was right-handed, that she had lost around 25 pounds without trying, and did not eat much. AR62. She had a high school diploma. AR62.

         Ms. Ortman testified that she last attempted to work at LifeScape, but lasted 8 days and could not continue working because she became sick and experienced extreme fatigue, brain fog, painful tingly hands and feet, and a very heavy right leg. AR63. She explained that each day became harder and harder, and she had extreme fatigue after the very first day. AR70. Ms. Ortman said she then went to her MS doctor and was treated with 10 days of steroids. AR71. Ms. Ortman stated that the steroids helped her. AR71.

         Ms. Ortman testified that in her job as a teacher's aide in North Dakota she was sitting most of the day. AR64, 67. She testified that she was allowed to use all her sick leave plus additional time off because they needed people due to the oil boom. AR69. Ms. Ortman testified that she lost her job when the school's student population significantly decreased the next year. AR70. Ms. Ortman also stated that her husband lost his job. AR70. She testified that while working as a cashier at Dakota Drug she was provided a stool and could sit or stand at the register. AR65-66. Ms. Ortman worked at Dakota Drug before she worked as a teacher's aide. AR226.

         Ms. Ortman testified that her mother takes her to run errands or go out for lunch or a drive, but she limits it to no longer than two hours because her symptoms exacerbate, such as “a weird feeling down my back;” tingly and vibrating arms and legs; shaky, numb and tingling hands; headaches; and brain fog. AR72-73. She said if she over exerted herself, she would lie down for the rest of the day and not do anything the next two or three days afterwards. AR73. Ms. Ortman testified that fluorescent lights bother her, and she wore sunglasses to the hearing to alleviate symptoms. AR74. She has perception issues when in hallways. AR74.

         Ms. Ortman testified that she normally sleeps from 8:30 p.m. until about 10:00 a.m., but napped twice for two to three hours per day. AR74-75. She said that both cold and heat bother her a lot. AR75. Between November 1st and February 1st she had only been out of the house eight times. AR75.

         Ms. Ortman has a delivery service deliver her groceries. AR76. Ms. Ortman testified that she does not cook any longer, except for putting something in a pan and heating it up. AR76. She said she no longer used knives because her fingertips are tingly, numb and shaky. She said she does clean, but her house is small and she cleans about 15 minutes at a time. AR77. Ms. Ortman testified that she did very light housework that was not too strenuous. AR84. Her husband cooks on the weekends, and they eat leftovers during the week. AR84. Ms. Ortman watches television. AR86. Ms. Ortman stated that she used acetaminophen for headaches and if her headache is really bad, she will lie down. AR86.

         Ms. Ortman testified she was diagnosed with fibromyalgia, which causes pain and stiffness, when she moved to Sioux Falls in 2016. AR78. Ms. Ortman testified that she has to get up from sitting to move around because “everything aches.” AR79-80. Ms. Ortman testified that when she is not working, she does better because she can control when she lies down, sits down, stands or sleeps. AR81.

         Ms. Ortman was asked about her ability to think and she testified it felt like her brain has shut off when she is experiencing a flare up, or she is tired, or becoming fatigued. AR83. She gave an example of being out with her mother and walking by something and telling her mother they were not going to look at pillows because she needed to leave, and her mom laughed at her because she was looking at purses, rather than pillows. AR83. She said she had very low concentration ability. AR83.

         Ms. Ortman was having discomfort in her neck during the hearing, causing her to “shrug” her shoulders with each of her answers. AR87. When asked if sitting at a desk looking at a computer would affect her, she said it would bother her neck. AR87.

         2. Vocational Expert Testimony

         The ALJ asked the vocational expert (VE) a hypothetical that incorporated the limitations in the RFC, and the VE testified the individual could perform Ms. Ortman's past work of cashier as she performed it, and the teacher aide job as performed, stating “it looks like it could be done, based on testimony.” AR90-91.

         The VE testified that an individual could be off task throughout the day up to 10-15 percent of the time in 6 to 10 minute increments each hour, and the VE agreed that if an individual were absent, late, or left early more than three days per month, they would not be able to sustain employment. AR93-94.

         3. Other Evidence

         On August 2, 2016, Ms. Ortman completed a function report as part of her application and stated in response to a question about what she does from the time she wakes until she goes to bed in the space of four lines, as follows: “make breakfast - sit on couch - laundry - dust - make lunch for me - make supper - water flowers - run errands - do stretches - take meds - go to restroom - make bed - take two hour nap - (maybe another 1 hour nap later.)” AR236. Ms. Ortman also stated on the report that she had no problems with personal care. AR236. Ms. Ortman stated that she prepared “complete meals with directions - some frozen foods, ” and as to changes in her cooking habits, she said she now uses recipe cards, and uses more frozen meals than before. AR237. Ms. Ortman reported that she cleaned, did laundry, vacuumed, and did paperwork “all combined about 2 hours a day - need to take breaks.” AR237. Ms. Ortman stated that she went outside once or twice a day. AR238. Ms. Ortman reported that she would travel by walking, driving a car, or riding in a car when going out, and that she could go out ...

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