United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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
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.
appeal of the Commissioner's final decision denying
benefits is properly before the court pursuant to 42 U.S.C.
§ 405(g). The parties have consented to this magistrate
judge handling this matter pursuant to 28 U.S.C. §
Statement of the Case
action arises from plaintiff 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.
Ortman's claim was denied initially and upon
reconsideration. AR124, 130. Ms. Ortman then requested an
administrative hearing. AR140.
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.
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.
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.
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. . . .”
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.
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.”
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.
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.
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.
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.
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.
Plaintiff's Age, Education and Work Experience
Ortman was born in August of 1962, and she completed the 12th
grade in 1980. AR162, 214.
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,
Relevant Medical Evidence (chronological sequence)
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.
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.
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. AR336.
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.
Ortman was seen for chiropractic treatment for continued
tightness in her mid back on October 1, 2015. AR309.
Ortman was seen for chiropractic treatment for continued
tightness in her mid-back on February 9, 2016. AR311.
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.
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.
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.
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.
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.
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.
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 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. AR422. Dr. Feldman counseled Ms. Ortman 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.
State Agency Assessment
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.
Testimony at ALJ Hearing
Ms. Ortman's Testimony
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.
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.
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.
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.
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.
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.
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.
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
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
Vocational Expert Testimony
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.
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.
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 ...