United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
Webb's Statements and Testimony
Medical Evidence - Chronological
Issues Before This Court
Standard of Review
Disability Determination and the Five-Step Procedure
Burden of Proof. .
the ALJ Err in Determining the Disability Onset Date?
the ALJ Err in Failing to Identify Severe Musculoskeletal
Impairments at Step Two?
the ALJ Err in Failing to Order Consultative Examinations?
to Develop the Record-Consultative Exams
Consultative Exam as to Impact of Obesity on Functioning
Consultative Exam as to Mental Diagnoses and Mental RFC
Consultative Exam as to Stage of Hidradenitis Suppurativa
the ALJ Err in Assessing Ms. Webb's Credibility?
Law Applicable to Determining Validity of Subjective
Failure to Follow Recommended Treatment
Impairments are Well-Controlled with Medications
Activities of Daily Living Inconsistent with the Described
Severity of Symptoms
the ALJ Properly Evaluate Medical Sources' Opinions?
Opinions of Dr. Kamer, Dr. Canham and Dr. Erickson
the ALJ Apply the Correct Standard to Determine the
Availability of Jobs at Step Five?
Amber Lei Webb, seeks judicial review of the
Commissioner's final decision denying her application for
disability insurance benefits (“DIB”) under Title
II and denial of attendant Medicare benefits under the Social
Security Act. Ms. Webb has filed a complaint and now moves to
reverse the decision of the Commissioner. Docket No. 17.
appeal of the Commissioner's final decision denying
benefits is properly before the district court pursuant to 42
U.S.C. § 405(g). This matter is before this magistrate
judge pursuant to the consent of all the parties under 28
U.S.C. § 636(c) and the October 16, 2014, standing order
of the Honorable Jeffrey L. Viken, Chief United States
District Judge. Based on the facts, law and analysis
discussed in further detail below, the decision of the
Commissioner is reversed and remanded for further
November 14, 2012, Amber Webb applied for SSD benefits, stating
that she had become unable to work due to disabling condition
on August 15, 2012. AR 277. Her application summary stated,
"I do not want to file for SSI." Id. She
stated that she was married to Michael Webb in 2001 in South
Dakota, and listed three children under the age of 18. AR
September 12, 2013, SSA in Colorado issued a notice of
disapproved claim and notified Webb of her right to appeal to
hearing. AR 171-73. On October 1, 2013, Webb
appointed Attorney John Heard of San Antonio, TX, to
represent her. AR 169.
October 2, 2013, Webb, by counsel, requested reconsideration.
AR 174. On February 28, 2014, SSA issued a notice of denial
after reconsideration. AR 175. On April 2, 2014, Webb
requested a hearing. AR 181.
October 3, 2014, SSA's Office of Disability Adjudication
& Review (ODAR) in Rapid City sent Webb and her lawyer a
notice of hearing, scheduled for December 4, 2014, in Rapid
City, before James W. Olson, administrative law judge. AR
188-92. On October 23, 2014, Webb's attorney, John R.
Heard, objected to a video teleconference hearing and
requested an in-person hearing. AR 361-62.
November 14, 2014, Attorney Heard submitted a pre-hearing
brief, listing Webb's impairments as Chiari malformation,
headaches, Hidradenitis suppurativa, status post left leg
surgery, obstructive sleep apnea, peroneal mononeuropathy,
bilateral lateral epicondylitis, insomnia, depression and
anxiety. AR 363. Attorney Heard discussed Webb's left
ankle impairment in some detail. AR 364. He argued that Webb
should be limited to a "less than sedentary RFC."
March 25, 2015, ALJ Debra J. Denney, ODAR, sent a notice of
hearing scheduled for July 20, 2015, in Rapid City. AR 238.
20, 2015, Attorney Heard submitted a pre-hearing brief with a
proposed sequential evaluation to ALJ Denney. AR 369-71. He
argued that Ms. Webb was unable to perform SGA on a
"regular and continuing basis." AR 371. On the same
day, Webb signed a form appointing Jared Cook, attorney, to
represent her. AR 275. The July 20, 2015, hearing was held in
Rapid City before ALJ Debra J. Denney, with the claimant
present and Attorney Cook. AR 53. The psychological and
vocational experts testified by telephone. AR 53.
November 10, 2015, the claimant requested review of the
ALJ's August 17, 2015 denial of benefits. AR 6. On July
13, 2016, the Appeals Council denied review. AR 1.
earnings since 1990 are displayed at ¶ 281-86. According
to the SSA report, her earnings from 1992-2012 ranged from
$3, 749 to $14, 708. AR 286, 289. Her detailed earnings
record shows employers and how much each employer paid each
year since 1997. AR 283-85. It reports six employers from
1997-2012. Id. The employer for whom she worked the
longest was Schrader Oil, 1999-2011. AR 284-85.
she earned $14, 708, which was her highest earning year. In
2012 she earned $8, 231. AR 289. After this she had no
reported earnings. Id.
described her work and periods of employment in her
disability report: June - August 2001, cashier in a
convenience store; August 2001 -August 2002, account
associate in a teleservices business; October 2002 -March
2011, sales associate in a convenience store; and May 2011 -
August 2012, account specialist for teleservices/banking
business. AR 296. She provided additional information
regarding work duties; number of hours spent on her feet, in
particular postures, and using her arms and hands; and weight
lifted in her "work history report" at ¶
testified that her last employment was in July or August
2012, when she worked for Center Partners, Inc., processing
credit card applications for Capital One. AR 61. She said
this involved using a computer and headset, speaking with
people to obtain information, and inputting data. AR 61-62.
Webb testified she was not sure if she had been fired:
"I didn't go in for, it was about three days. I was
already on notice because of previous absences." AR 62.
questioned Webb about statements in her application that she
could not maintain her work schedule because she had constant
headaches, some arm pain, massive anxiety, would sometimes
break down hysterically when she drove up to the door, and
was on probation for absences. AR 62. Webb affirmed that she
had made those statements. AR 62.
questioned Webb about previous jobs, and Webb stated that
before Center Partners she worked for Schrader Oil, a gas
station, and ran the register, stocked, cleaned, ordered,
"everything." AR 62-63. Webb stated that job ended
when a new manager was hired. She said the new manager did
not like her absences although the former manager "would
work with me." AR 63.
Ms. Webb's Statements and Testimony
February 28, 2013, SSA field office wrote that Webb felt
"like she became disabled 06/15/2011, but SGA work does
not stop until 8/15/2012.... POD is when work stops
08/15/2012." AR 290.
disability report on or about November 14, 2012, Webb reported a
Ft. Collins address. AR 293. She alleged conditions: Chiari 1
malformation, social anxiety, depression, and asthma. AR 294.
She said she was five feet, ten inches tall and weighed 300.
stated that she stopped working on August 20, 2012 because:
I was unable to maintain my schedule due to constant
headaches and arm pains. I was unable to handle the work
environment due to massive anxiety. I would break down
hysterically at driving up to the door. I was already on
probation due to absences for headaches and pain, and had
been "talked to" about my arm pains and smell"
stated that she believed her conditions became severe enough
to keep her from working on June 15, 2011. AR 295. She had
completed twelfth grade in 1990 and had not completed any
specialized job training or vocational school. AR 295.
reported her medications: Percocet prescribed by Orthopedic
Center of the Rockies for pain control;
Sertraline (Zoloft) prescribed by Family Medicine
Center for general anxiety, social anxiety, and depression;
and vitamin D supplements for vitamin D deficiency. AR 297.
She reported the doctors who had seen and/or treated her.
According to her report: In October and November 2003, Ms.
Webb saw Dr. Michael Curiel, Ft. Collins Neurology, 2121 E.
Harmony Rd., Ft. Collins, CO 80525, for Arnold Chiari
Malformation, Type 1. Dr. Curiel referred her to Dr. Coester. AR
October and November 2003 she saw Dr. Hans Coester at CHMG
Brain and Spine Surgery, 1107 S. Lemay Ave, Ste 240, Ft.
Collins, CO, for Arnold Chiari type 1 malformation with
headaches, numbness of legs, equilibrium [problem],
nystagmus, and weakness of hands. Dr. Coester had evaluated
her by MRI imaging and discussed surgical options. AR 298,
she was seen at Surgical Specialists of the Rockies, 2315 E.
Harmony Rd, Ste 130, Ft. Collins, for hidradenitis
suppurativa surgery. AR 300, 304.
May 2011 to August 2012, Ms. Webb saw Dr. Jackson at
Orthopedic Center of the Rockies in Ft. Collins for an ankle
injury, which was surgically treated. AR 302. She had imaging
of her left ankle in 2011-12. AR 302.
2007, 2011, and 2012, Webb was treated at the Poudre Valley
Hospital emergency room for hidradenitis suppurativa flare-up
and drainage, and for her work-related ankle injury. AR 303.
From 1997 to 2013, Ms. Webb saw Dr. Amber Steves at Family
Medicine Center in Ft. Collins for depression, anxiety,
nystagmus, equilibrium [problem] and vitamin D deficiency. AR
stated in her disability report that she struggled daily with
the pain and embarrassment of her medical problems. AR 306.
I have tried to work, and previously had a very compassionate
manager who would let me leave as I needed due to the length
of time I had worked for him. My Chiari 1 Malformation
didn't start affecting my quality of life until around
2003 when I gave birth to my daughter. My Hidradenitis
Suppurativa increased GREATLY approximately one year later. I
am currently housebound due to anxiety and depression which
the medications seem unable to alleviate.
completed a function report on July 3, 2013. AR 307-14. She
described how her conditions limited her ability to work:
I have debilitating headaches almost daily, that leave me
with my vision temporarily impaired, and poorer balance. It
also leaves me with difficulty with my hands' functions
ie fine motor control. I also have extremely painful sores
that recur on my body that suppurate freely.
function report questionnaire asked what she did from the
time she woke until she went to bed. Webb wrote,
"Generally housework in short spurts - the kids help as
bending over will give me a headache. I help the kids with
homework etc. as I can." AR 308. She took care of her
children: "I mostly supervise them as the oldest is 14
and able to do quite a bit now.... [M]y kids help each other,
and fuly [sic] care for their pets." AR 308. Asked what
she could do before, that she couldn't do now, Webb
wrote, "Be in public regularly, walk a straight line,
remember things, lift things, walk." AR 308.
about her sleep, Webb wrote, "My headaches wake me up in
the middle of the night 4-5 times a week. The sores make it
painful to lay down." She stated, "I have to bathe
the sore areas 2-3 times a day." AR 308. "I have to
shave affected areas daily - difficult to do due to
restricted motion at times." AR 308.
wrote, "I have to set memos on my phone to remember
medications." AR 309. She wrote that her children helped
with cooking. AR 309. She wrote that when cooking, "Many
times I get dizzy, drop things, forget steps." AR 309.
She wrote, "I can do most household cleaning that
doesn't require bending but I have to take short breaks
often." AR 309. She did not do yard work because bending
and stooping gave her a headache, and sweating irritated her
sores. AR 310. She wrote that "depth perception and
vision before and after a headache" did not permit
driving. AR 310.
shopped in stores and by computer for groceries and items for
kids once a month for about an hour. AR 310. Answering the
money-management questions, she wrote, "my cognitive
abilities are spotty, I don't want to take chances with
money." AR 310. She wrote, "I have a harder time
with making change - I lose track of the simple math in my
head sometimes". AR 311.
hobbies and interests were reading, crocheting, computer
games, television, and going to the movies. AR 311. She wrote
that she no longer crocheted. She read but not as long. She
still played computer games "but take a break
faster" and "I watch more tv, mostly so I can
nap." She said she no longer went to the movies or the
bookstore. AR 311. She wrote, "I don't enjoy social
interaction outside my immediate family" and "I
only go to the grocery store or the dr., and I've
rescheduled dr visits due to pain and/or anxiety." AR
311. "I feel extremely tense and anxious in groups of
people outside my home.... My sister and friends have to come
to my house, I dislike going anywhere except
occasionally." AR 312.
to check activities affected by her conditions, Webb checked
squatting, bending, walking, seeing, memory, completing
tasks, concentration, and using hands. AR 312. She did not
check lifting, standing, reaching, sitting, kneeling,
talking, hearing, stair climbing, understanding, following
instructions, or getting along with others. AR 312. She
stated, "I can only bend or squat if I keep my head
upright. I stumble often when I walk. Pre- and post-headache
my vision is blurry, my memory and concentration are poor,
and fine motor skills w/my hands is spotty." AR 312.
stated that she could walk one-half mile at most. She stated
that she could finish what she started, and could follow
written instructions well (the example given is a recipe),
"as long as I can refer to the recipe repeatedly."
She stated that she followed spoken instructions "poorly
- I need a visual reference." AR 312.
stated that she had been fired: "I got a new manager who
decided she didn't want me in my position after 9
years" at Schrader Oil Corp. AR 313. She stated that she
did not handle stress well, nor changes in routine. AR 313.
She stated, "If too many people are in a store I have to
leave because I can't think or breathe." AR 313.
"Remarks" section of the function questionnaire,
Webb stated that her hidradenitis suppurativa was becoming
"more and more of an issue. No. matter how careful I am
the breakouts come larger and larger all the time. The pain
and suppuration are becoming unbearable. The headaches
increase every day...." She stated that as she wrote her
answers, she was unable to move her left arm due to pain, and
"I can no longer wear a brassiere as it will cause a
break out of multiple sores if I wear it for more than an
hour." My anxiety is still difficult but the dr. is
hopeful my new medication will help." AR 314.
responded to a "personal pain questionnaire" that
asked for detailed descriptions of her pain, how often she
experienced pain, where pain was located, how it limited her
activities, and treatment used to relieve pain. AR 327. Webb
reported that her headaches were sharp, pounding, and aching.
Her hidradenitis sores throbbed or caused dull aching.
Headache pain was worsened by laughing, crying, sneezing,
bending, and straining. Hidradenitis pain was worse in hot
weather. She had pain every day, generally all day. Headache
pain radiated down her neck. Hidradenitis suppurativa pain
was under the breasts and arms. She used hot compresses and
showers on the skin sores. Light massage of neck and shoulder
helped her headaches. She used Salsalate 750 mg. (75%
effectiveness at best) and Tylenol 100 mg. (60% effectiveness
at best). AR 327.
3, 2013, Webb completed a headache questionnaire. AR 328-29.
She reported that she first began having severe headaches at
age 9, that her last headache was "Today, when I woke
up, " that she had 10-12 headaches a week and they
lasted from 15 minutes to 16-18 hours. AR 328. "My pain
radiates from the back of my head, blurring my vision,
causing loss of balance, nystagmus, loss of fine motor skills
and grip, also severe dizziness and loss of balance."
Headaches were brought on by laughing, coughing, sneezing,
bending, lifting, or straining. AR 328. She stated that when
she had a headache she could not walk without support, that
she no longer drove, and that she had to cancel many
appointments due to pain. AR 329. She stated that Salsalate
in conjunction with Tylenol eased that pain, that heat
sometimes eased headache pain, and that neck or back rubs
relieved headache pain. AR 329. She stated that she did not
seek treatment when she had a headache as "there really
isn't anything they can do." AR 329.
22, 2013, Webb completed a "fatigue questionnaire."
AR 332. She stated that she experienced fatigue once a day on
average, that her "cm headaches leave me drained, as
well as the pain from my HS sores. I also have difficulty
sleeping most nights." Asked what activities she had had
to restrict or stop because of fatigue, she stated, "I
do little in the afternoons and mid-morning." Asked to
describe her activities in a 24-hour day she stated that she
usually did laundry first thing in the morning, then what
cleaning and vacuuming she could with her children helping
with bending or lifting "to try and avoid triggering a
headache." She said she went grocery shopping twice a
month. She stated, "My fatigue has increased drastically
since my headaches have increased. I went from a headache 1-4
times a month to daily, lasting sometimes all day." AR
October 1, 2013, Webb's attorney completed a second
disability report. AR 341-44. She listed additional sources
of medical evidence: Dr. Kevin J. Tool, 1107 S. Lemay Ave,
Ste 300, Ft. Collins, CO 80524, Tel. 970-493-7442, stating
that she visited Dr. Tool on August 19, 2013, for treatment
of hidradenitis suppurativa, noting: "Gave some options
but since none would relieve pain from HS, client may not
follow through." Also reported was a sleep test on July
1, 2013, at Northern Colorado Pulmonary. AR 343.
April 2, 2014, Webb, with assistance of Attorney Heard,
completed an updated disability questionnaire, reporting
nothing new. AR 353-56.
testified at her hearing in Rapid City on July 20, 2015. AR
51, 53. She stated in response to the ALJ's questions
that she had been having "significant problems primarily
with the headaches" and these "added to my symptoms
as far as being unable to use the computer system at
work." AR 57. She testified that she would need to go
home "because as my headaches progress, I lose my depth
perception and my balance, making it really dangerous for me
to drive.... I became unable to drive consistently, my
husband was having to take me to work." AR 57.
testified that supervisory personnel "knew the
situation, I had my doctor's note, but there's still
limits to what's acceptable." AR 58. She testified
that she was five feet, ten inches tall, weighed 320 pounds,
and had "problems" with her knees that
"aren't great" and "haven't been since
I was a teenager." AR 58.
testified that she and her husband were separated and the
three children, ages 17, 15, and 11, lived with her and her
husband's former step mother, Amy ("my best
friend"), and Amy's daughter in a mobile home in
Sturgis. AR 59-60.
testified that she did not have a driver's license
"because I really couldn't drive, " and her
husband or Amy drove her places. AR 60. She had completed
twelfth grade. AR 60.
testified that for mental health treatment, she primarily saw
Dr. Hoag. AR 72. She stated that she had been referred to one
practitioner who was not taking new patients, that it was
difficult for her to get back and forth to Rapid City, and
that she had recently learned of a therapist in Sturgis who
was now accepting Medicaid. AR 72. However, she did not know
his specialty and had to find out from Dr. Hoag, her family
doctor. AR 72-73. She stated that Dr. Hoag had prescribed
Wellbutrin,  which helped significantly. She stated
that she also took Celexa and "between the two
there's much better function, at least at home.... I can
go out with the family on occasion, as long as it's ...
limited." AR 73. She testified that she could not
go to the mall but she could go to the grocery store or out
to dinner if it wasn't terribly busy. AR 73-74. She
testified that she also took Hydroxyzine for the times that
anxiety kind of overwhelmed her usual medications, and had
taken two [pills] before the hearing. AR 74.
testified that her headaches were "by far the most
dominant" symptoms, that she had headaches pretty much
every day, which could last five minutes to a day. AR 75. She
testified that she usually lay down when she had a headache,
and took Acetaminophen and caffeine, which "tend[ed] to
take the sharp edge off...." AR 75. Dr. Finley had given
her Topamax,  which was effective for a while but lost
effectivity. AR 76. Dr. Finley had given her Nortriptyline,
"which never worked...." AR 76.
Finley had not offered other medication but "wants to
reexamine the sleep apnea and try to alleviate some of that
to see if it will ... help with some of the headaches."
testified that she had seen Dr. Gasbarre in Spearfish for her
hidradenitis, but only once. AR 76. She stated, "I'm
pretty much scars from here to here, " gesturing under
both arms, and "all the way underneath both breasts.
I'm pretty much just a mass of scars...." AR 77. She
said creams did not work. She also said Dr. Gasbarre had
tried steroid injections "and it was not terribly
useful" and was excruciatingly painful. AR 77.
testified that she took "Ropinirole" for restless
legs and that it helped, or slowed it down. AR 77-78. She
testified that she had no side-effects from any of her
medications. AR 78-79. Webb testified that she had pain all
day every day, and "If it's not the headache
it's ... under my arms or in my breast." AR 79.
testified that her boys helped cook, and pulled laundry out
of the stacking washer and dryer because she did not have the
strength to lift it. Her boys brought laundry to her to sit
down and fold. AR 80. She testified that she had not been to
any of her children's activities for five years
("since my 17-year-old was in seventh grade")
because "I can't handle the crowds." AR 80. She
could handle individual parent teacher conferences. AR 81.
She could not tolerate concerts. AR 81.
testified that she had been prescribed a BiPAP machine that
South Dakota did not approve, "So Dr. Finley wants to
revisit that ... [a]nd write a new order...." AR 83.
testified that she took two dogs outside but not for walks:
"I couldn't get down the driveway at this
point." AR 84. She did not garden, or go to church, or
visit relatives, although during the past few months she had
made multiple trips to Colorado for her father's last
illness and funeral. AR 85.
testified that when she was working she was absent once or
twice a week on average. AR 86. She sometimes had a warning
of onset of headache, "[w]here... I can be carrying
something or holding something and I just drop it." AR
86. She described symptoms associated with her headaches,
which were not like a typical migraine with
light-sensitivity, "but I do lose depth perception.
It's very difficult for me to read or see. My eyes ...
become unfocused." AR 87.
testified that her sleep schedule was “all over the
place." AR 88. She testified regarding her understanding
that surgery for Chiari Malformation was effective for
alleviating headaches about 50 percent of the time, but did
not alleviate problems with balance, depth perception, or
"the numb spots that I get." AR 88-89. She
described her balance problem as being unable to walk a
straight line and tending to veer left. AR 89. She said that
when she walked with her husband, he walked on her left to
compensate for this. AR 89.
testified that she could walk 15 or 20 minutes "before
it starts affecting me." AR 90. She could sit 15 or 20
minutes before she had to get up and move. AR 90. She could
lift 20-30 pounds. AR 90.
wrote a letter to the Appeals Council dated September 11,
2015. AR 373. Webb stated that she had been unable to obtain
consistent medical help for her Chiari Malformation,
diagnosed in 2003. AR 374. She stated that she had been
informed then, that the neurosurgeon recommended surgery.
I didn't have insurance, beyond the post-natal that I
received through Medicaid which expired approximately one
week after my diagnosis. There are no medications that
alleviate the symptoms of CM. The best that I could do was
try to manage the pain the best I could with over the counter
medications which is of extremely limited efficacy at best.
* * *
I had a very understanding boss for several years, who knew
my work ethic prior to these headaches taking over my
life.... I was able to get off work as I needed to. Then when
I no longer had the same manager, due to him leaving, I began
to have problems with attendance. My new manager was not as
flexible.... I then went to another company.... Then was I
not only experiencing the incredible pain, and myriad other
CM symptoms, I was also unable to cope with terrible social
anxiety. Again, no medical coverage meant no
"official" diagnosis, and certainly no medications
to alleviate the anxieties. The anxieties, coupled with
spotty attendance, became a serious issue in continuing my
employment. Again, initially, I was in luck with a fairly
flexible supervisor, who helped as he could, but when he
moved to another location in the company, I lost that help,
and consequently was informed if I couldn't alleviate the
issues, maybe I shouldn't work.
the same time frame, Webb stated, "I was dealing with my
The Hidradenitis began flaring up around 2004... I had to
have emergency surgery. This is a bill I still have been
unable to pay off.... I was never even able to go to my
follow up visits with the surgeon, due to lack of money
and/or coverage.... With Hidradenitis, as with CM, there is
no medication or consistent course of action or care that is
a definitive treatment... I was at my dermatologist this past
week, and he reiterated the same to me. He informed me that I
was already doing the best that could be done and that we
would just try some other options to see if it might help a
bit more. The Hidradenitis is incredibly painful as well as
socially demeaning.... I ran into consistent issues at work
because of it - the pain, the drainage, the smell, the all
around mess.... Many days I cannot even move one or both arms
due to flare ups, or open sores. This again means I cannot
function properly at work, so leads to even more attendance
issues, and frequent disciplinary action by my employers.
I have tried to find jobs, but I simply cannot find anything
that is flexible enough to deal with my frequent absences. On
average, I was absent at my last place of employment once per
week, and had to go home early sometimes twice within the
same week... I cannot predict when I will be debilitated with
pain. I would gladly when I'm not in pain, but I cannot
predict when that would be, and so employers cannot rely on a
solid schedule with me.... I even attempted work at home
programs, but ultimately ran into the same problem.... I was
still required to produce X amount of work and/or X hours.
Again, unpredictable. I am truly at a loss as to how to
proceed at this point. I wish desperately to work....
submitted information about her conditions "since I am
aware that neither of my conditions is common, nor is the
treatment of them. I am hopeful you will be able to see what
I am up against...." AR 376.
stated that her neurologist was focusing on her sleep apnea
"to help alleviate what can be alleviated and therefore
help with the pain more effectively.... There is simply no
medication for the other Chiari symptoms that I experience
such as the dizziness, loss of depth perception, trouble
swallowing, nystagmus, terrible fine motor skills, and more
depending on the day." AR 376.
stated that her dermatologist had informed her in the past
week that surgery for her Hidradenitis was not an option due
to the severity and length of the sinuses that had developed.
stated that she still needed to be able to provide for her
children, but "I am lucky in that my children are now of
an age that they require little in the course of day to day
that I have to be fully functional for. They get rides from
family members, friends, their dad, etc. They assist me daily
in household maintenance such as laundry and
cooking...." AR 376.
submitted an undated addendum to her letter, stating that she
had had appointments with her neurologist and dermatologist,
[T]here was still nothing that changed or alleviated my
symptoms of ... hidradenitis and the Chiari Malformation. My
dermatologist recommended a topical ointment that
unfortunately I cannot afford. My Medicaid will not cover it
due to the huge expense, and I cannot pay over $300 per
prescription. My neurologist prescribed another medication
that unfortunately isn't efficacious, and instead
increases my pain and discomfort with side effects.
Medical Evidence - Chronological
5, 2011, Kevin O'Toole, D.O., saw Webb at Poudre Valley
Health System, Ft. Collins, Colorado, for a June 20, 2011,
work related left ankle sprain. AR 463. She was wearing an
ankle brace and was weight bearing and doing ankle exercises.
She did not complain of instability. The swelling had
improved. She said her pain level was 3/10. AR 463. On exam
she demonstrated no pain behaviors. Gait was minimally
antalgic and she was wearing her brace. With removal of the
brace, there was mild edema inferior to the lateral
malleolus. She had tenderness over the anterior and posterior
talofibular ligaments and the calcaneal fibular ligament. She
had distal peroneal tenderness. She had full range of motion.
Anterior drawer testing was positive. X-rays showed
soft-tissue swelling and no bony injury. The assessment was
"Left ankle sprain, unimproved with signs of increased
joint mobility and ligamentous tearing." AR 463. Dr.
O'Toole said he was referring Webb for an ankle MRI. She
would wear a boot when weight bearing, continue to elevate,
do range of motion exercises gently, and apply cold as
needed. Her working status was updated to wearing the boot
and avoiding stairs. AR 464.
19, 2011, Dr. O'Toole reported the MRI findings that
included ankle joint effusion, Grade II sprain of the ATF
ligament, and Grade I sprains of the calcaneal, fibular, and
deltoid ligaments. AR 461. Also noted was chronic central
band plantar fasciitis of which the patient was aware.
Examination showed plaintiff demonstrated no pain behavior
and with removal of boot, there was just minimal edema,
tenderness over the anterior talofibular ligament, and full
ankle active range of motion. The assessment was severe left
ankle sprain. Treatment was a lace-up brace. AR 461. She
would avoid stairs and perform daily range of motion
exercises. AR 462. Dr. O'Toole did not expect permanent
impairment. AR 462.
August 2, 2011, Dr. O'Toole recorded that the patient
reported improvement, felt comfortable in her new brace, and
had minimal trouble with swelling by the end of the day. AR
459. She said she was performing her active range of motion
exercises and felt better overall. AR 459. With removal of
the brace upon examination, there was just trace edema and
minimal tenderness and her active range of motion was full.
AR 459. Dr. O'Toole assessed left ankle sprain,
improving. AR 459. Her work status continued to be wearing
her ankle brace and avoiding stairs. AR 459.
September 29, 2011, Dr. O'Toole reported that the patient
had weaned from her brace, had a pain level of 2/10, and
complained of some popping and general weakness. AR 457. She
felt better climbing stairs but had some discomfort
descending stairs or on very uneven terrain. She did home
exercises daily. She reported tolerating full duty [work]. AR
457. Examination was normal except for end-point inversion
tenderness. Her gait was not antalgic on a level surface.
There was no deformity or edema. She was nontender over the
lateral ankle but had end point inversion tenderness. Active
range of motion of the ankle was full. The assessment was
that her severe sprain was improving but she needed
ankle-strengthening. AR 457. Dr. O'Toole planned to refer
her to physical therapy for strengthening and proprioceptive
training. AR 457. He noted she was on full duty without
restrictions. AR 458.
October 11, 2011, Paul Braunlin, physical therapist at Poudre
Valley Health System, reported his evaluation and treatment.
AR 454-56. Webb reported she was a full-time customer service
employee at Center Partners. AR 454. On June 20, 2011, she
was walking outside the building, up the stairs, and caught
her left foot on the remnant of a post that had been cut off
that had a portion sticking up. She tripped, fell, and
sustained a fairly severe ankle sprain. AR 453. Mr. Braunlin
noted a June 12, 2011, MRI showed "moderate-sized ankle
joint effusion, marked grade II sprain of the ATF ligament,
grade I sprain of CF and deltoid ligament, mild posterior
tibial tenosynovitis and tendinopathy, mild peroneal
synovitis, chronic central band plantar fasciitis." AR
told Mr. Braunlin that she was 50-60 percent back to normal
but still had problems on uneven ground and going down
stairs. She described feelings of instability multiple times
per day in her left ankle. She gave a history of severe right
ankle sprain at age 14 or 15. She reported bilateral knee
pain and "states they had recommended surgery. She has
patellofemoral cartilage problems. The right is worse than
the left." AR 454. She smoked 3/4 to 1 pack of
cigarettes a day. AR 454. She once quit for a year. AR
told Mr. Braunlin that she had headaches from a Chiari I
malformation and had days when she was "clumsy with both
her hands and feet.” AR 455. She took ibuprofen and
Tylenol as needed. She rated her ankle pain between 1-2 and
denied using heat or ice. Objectively, the patient had a
fairly normal gait. Her balance was only fair, and she
reported having had poor balance all of her life. AR 455.
Active knee range of motion was full extension and 135
degrees of flexion without report of pain. Active ankle range
of motion was dorsiflexion 5 degrees, plantar flexion 45
degrees, inversion 35 degrees, eversion 25 degrees. On
passive range of motion the therapist felt instability at the
end range of plantar flexion inversion, with excessive
motion. She was tender diffusely through the left ankle and
had mild swelling. AR 455. She was able to walk on her heels
and toes though not comfortably due to pain. She had 5/5
strength for dorsiflexion, plantar flexion, inversion and
eversion. The physical therapist gave her instructions for a
home exercise program with elevation, use of heat or ice, use
of the ankle brace which was preferable to a device that
restrained the ligament. He recommended using a stationary
bike and "she said she would be unable to because of her
knees although she may tolerate 5 degrees." The
therapist instructed her how to do balance reeducation
exercises. AR 455. Therapist and patient agreed on goals:
stop smoking, with discussion of the implications in the
healing (she said initially no way, although ... there are
times when she does want to quit ... and we will discuss this
further); improve one-legged standing and dynamic balance;
use heat and ice to reduce swelling and pain; and
consistently use the brace to protect the ligaments as they
heal. AR 456. The patient would be seen once a week for
modalities for 3-4 weeks. AR 456. Rehabilitation prognosis
October 27, 2011, Dr. O'Toole noted Webb's diagnosis,
treatment, and July 2011 MRI findings. On September 29 she
had reported 2/10 pain, ankle popping and weakness, and was
referred to physical therapy. Today she said she felt the
same, with 2/10 pain, but denied any problems when she was on
even ground. "It is only on uneven
terrain that she experiences pain." She said the ankle
felt somewhat unstable. She had been wearing her brace but
did not wear it this day because of snow. On exam, blood
pressure was 150/92, pulse 102, respiration 24, and pain
level 2/10. AR 449-450.
findings were mild edema over the inferior malleolus,
tenderness over the ATF ligament, and tenderness with
endpoint inversion of the ankle, but without laxity.
Assessment was severe left ankle sprain with delayed recovery
and poor compliance with treatment as she had missed and
rescheduled appointments. AR 449- 50. The plan was to
continue physical therapy, wear the brace, return to full
duty but avoid stairs. AR 450. Dr. O'Toole planned to
refer her to Dr. Wesley Jackson for an orthopedic
consultation. AR 450.
November 3, 2011, Dr. Wesley Jackson, M.D., Orthopaedic &
Spine Center of the Rockies (hereinafter Orthopaedic Center)
saw Webb for a left ankle injury. AR 408. The history was
that she had inverted her left ankle on a post in a concrete
parking lot on June 13, 2011, and had a lot of swelling.
Initially she wore a boot, then an ASO ankle brace. Currently
she was in physical therapy. She still had pain and
instability on the lateral side of the ankle. Id.
She had a medical history of Chiari malformation, asthma, and
latex sensitivity. She worked in telesales and was working
without restrictions. On examination she was five feet 11
inches tall and weighed 283 pounds. She had swelling along
the posterolateral ankle. On seated exam, she had a grade 2
drawer and a grade 2 tilt, which reproduced pain with
tenderness over the ATFL [anterior talofibular
ligament]. AR 407-08. She had minimal medial
gutter tenderness. Her peroneals functioned well but were
slightly tender. AR 407. Three non-weightbearing x-rays on
the PVH PAC system from June 28 showed no osseous
abnormalities. An MRI dated July 12, 2011, showed tearing of
the ATFL and CFL [calcaneofibular ligament] and quite a
bit of fluid in and around the ankle posteriorly, anteriorly,
and medially. AR 407. The peroneals were a little bit
tenosynovitic without obvious tear. The posterior tibial
tendon was the same. Diagnosis was chronic anatomic left
ankle instability status post sprain. AR 407. Dr. Jackson
discussed the findings, natural history and treatment
options. She had ankle impingement and instability. It was
now chronic. Her nonoperative option was a more robust brace.
AR 407. Or she could have, as an outpatient, ankle
arthroscopy, debridement, and Brostrom-Gould ligament
reconstruction, which would benefit her greatly. She would be
able to bear weight two or three weeks after surgery. AR 407.
November 14, 2011, Paul Braunlin saw Webb for her fourth and
last physical therapy visit. AR 447. She reported
intermittent left ankle pain, feeling more stable in the
ankle brace, pain going downstairs, but said she was
pain-free going upstairs. She states that she was reluctant
to have surgery as she had a problem coming out of anesthesia
after her last surgical procedure. AR 447. Objectively, she
went upstairs quite well. Going down she had obvious pain and
was somewhat awkward. This had not changed since Mr. Braunlin
began seeing her, he said. AR 447. She had full active range
of motion and could walk on her heels and toes but that was
painful. AR 447-48.
"fairly good" one-legged standing balance. AR 448.
She had obvious weakness in her hips and trunk, demonstrating
excessive weight shift. She was able to walk on her heels and
toes forward and backward and go sideways crossing her right
foot over her left and the reverse with good coordination and
balance. AR 448.
Braunlin recommended that she begin doing partial sit-ups and
hip abduction strengthening, which was difficult for her. He
recommended a stationary bike, treadmill or recumbent bike.
She did not have the finances to go to a gym, and did not
have time with her young children at home. The physical
therapist assessed a "plateau in progress of her
physical therapy. She continues to have intermittent pain and
[in]stability." AR 448. Mr. Braunlin said he did not
have anything else to offer. AR 448.
December 15, 2011, Dr. O'Toole assessed chronic left
ankle instability, status post sprain, and recommended that
Webb proceed with surgery proposed by Dr. Jackson. AR 446.
March 1, 2012, Dr. Jackson reported that the patient had
elected to undergo surgery for left ankle instability and
impingement. She wanted to take a week or two off work and
then go back to a desk job. She still had pain and
instability of the left ankle that affected her activities of
daily living. On exam, she had grade 2 drawer, grade 32 tilt,
and pain over the ATFL and sinus tarsi. Assessment, again,
was chronic left ankle anatomic instability after a sprain.
March 1, 2012, the Poudre Valley laboratory reported results
of latex allergy studies. Classes 0, 1, and 2 were undetected
to moderate. Class 3 was high, and Classes 4-6 were very
high. AR 552.
March 9, 2012, Webb was post op. She was on Percocet and had
severe itching all over her body. She stated that she did not
tolerate Vicodin. She said her pain was reasonable. She was
given Tramadol and would use Benadryl for the itching.
March 13, 2012, Dr. Jackson saw her six days after left ankle
arthroscopy, debridement, and Brostrom-Gould ligament
reconstruction. AR 404. She reported intermittent diurnal
paresthesias, i.e., tingling and numbness in the top of her
foot. She thought her splint was pressing in the front of the
ankle. She said she “really has not much pain”
and had stopped pain medications. On exam she had moderate
swelling, negative drawer, and negative tilt. Light touch
sensation was slightly diminished in the superficial peroneal
nerve distribution and she had slight paresthesias in the
plantar aspect of the foot. Dr. Jackson did not think this
was unusual but told her to remain non-weightbearing for
another week. She would wear a removable Cam Walker boot. AR
March 16, 2012, Dr. O'Toole recommended that Webb be off
work until she saw Dr. Jackson again, and do no weight
bearing on her left foot. AR 444.
March 22, 2012, Dr. Jackson recorded that the paresthesias
had resolved and that Webb reported having some aches and
pains. On exam she had grade 1 drawer and a negative tilt,
and minimal swelling. She had no calf pain. Dr. Jackson
stated the treatment plan. She was not working. She could
walk one hour and stand one hour a day. She would wean off
crutches and Roll-A-Bout as tolerated. She could ice and
elevate as needed. AR 403.
April 11, 2012, Dr. O'Toole updated her work status to
one hour walking or standing per day, using a Roll-A-Bout as
needed and wearing her cast boot. He stated that she had been
unable to work on March 27 due to injury-related pain. He
informed Webb that if she had any more problems where she
felt incapable of working, to notify him so that he could
assess and provide a work status form if appropriate. AR 442.
April 12, 2012, Dr. Jackson said Webb was doing well, working
on restrictions and her cast would be removed today. She had
been walking in the cast quite a bit and elevating her leg
quite a bit. She had intermittent calf pain below the gastroc
when she elevated it. Otherwise her ankle pain was
intermittent, with activity. AR 402. Exam findings were
negative. The assessment was "excellent
postoperative.” The plan was to wear a boot except to
sit, sleep, shower, and bathe. She would use the boot to walk
for the next three weeks, then an ASO ankle brace. She would
do gentle active range of motion. If this did not eliminate
her pain within two days, she would return for another
evaluation. At work she could walk two hours and stand three
hours a day max, wearing the boot. AR 402.
April 13, 2012, Webb saw Dr. O'Toole for increased pain
beginning the evening before, and spasm that she thought
might be due to increased activity after she got out of the
cast. AR 439. Tramadol helped. She rested, elevated, and the
pain improved to 4/10, she said. After coming to the clinic,
it was higher at 9/10, she said. AR 439. On exam, with
removal of the boot, there was a horizontal ridge in the area
of tenderness on the mid posterior calf. Dr. O'Toole
assessed left calf myofascial pain secondary to increased
activity. AR 439. Dr. O'Toole advised heat, elevation,
and gentle ankle active ROM exercises and Tramadol as needed.
Her work status was unchanged. She was to go to the ER if she
had a significant increase in pain, redness or swelling in
the ankle. AR 440.
April 17, 2012, Webb saw Dr. Johnson who reported to Dr.
Jackson in a phone conversation. She had calf pain and a
Doppler was negative for DVT. Other than leg or calf pain she
had no constitutional symptoms. Her pain could be due to the
splint or the cast. AR 401.
24, 2012, Dr. Jackson said that Webb was not in therapy yet.
She had been wearing her ASO ankle brace for two weeks. She
got calf cramping and pain intermittently with activity. AR
400. She was working. She denied back pain, leg pain proximal
to the knee, or radiation, and paresthesias. On exam her
ankle was neutrally aligned with a "very, very subtle
varus" and no pain, tenderness or swelling, and good
strength and range of motion. Her peroneals were a bit weak.
She had a grade 1 to 2 drawer sign. Dr. Jackson said she was
satisfactory postoperative. New x-rays showed mild osteopenia
and a normal mortise, hindfoot, and subtalar joint. She had
subtle hindfoot varus deformity. AR 400. The treatment plan
would be to neutralize her subtle varus with a laterally
posted Superfeet. Dr. Jackson recommended physical therapy
for balance and proprioceptive training. He thought a lot of
her muscle aches and pains in her calf were neuromuscular.
"I think she has plenty of room for improvement"
and "I think she is still too close to having had
surgery to make any other assessments...." AR 400. Her
only working restrictions were no climbing and no stairs. AR
31, 2012, Dr. O'Toole recorded Webb's complaint of
continued problems with ankle and foot pain, reported as 5-6
currently. She said that the Superfeet were not helping but
caused pain on the contralateral foot and ankle and that her
feet fatigued more quickly using the Superfeet. She also
noted persistent pain in the lateral foot. The topical gel
that Dr. O'Toole had provided for her calf at the last
visit was helping with the pain. AR 437. On exam, gait was
noted to be antalgic on the left. Positive findings were
trace edema over the lateral malleolus, minimal tenderness to
palpation laterally, positive anterior drawer, calf
tenderness with dorsiflexion of the ankle, and no other
findings of note. AR 438. Dr. O'Toole advised Webb to
discontinue Superfeet, start physical therapy, and see Dr.
Jackson earlier than planned to talk about the problem with
the inserts. Dr. O'Toole updated her work status to a
maximum of one hour walking and standing per day, and she was
to wear her lace-up ankle brace. "Date of MMI is unknown
at this time." AR 438.
11, 2012, Paul Braunlin, physical therapist, evaluated and
treated Webb. He noted in the subjective section of the
treatment note that she had failed conservative care and
underwent left ankle arthroscopy, debridement, and ligament
reconstruction for instability and anterior impingement. Date
of surgery was March 7, 2012. AR 431. She described the pain
in her left ankle and lateral forefoot as "constant
bruising" and rated the pain as 5-6/10. AR 431. She
stated that the snapping and popping was 10 times worse than
before surgery and reported being "very, very frustrated
how tight and how loose my ankle is." AR 431. She said
she was mostly sitting at a desk when working. AR 431. When
they discussed improving her balance and proprioception, Webb
reminded the therapist about her Chiari malformation
"and she states she has had balance problems and
clumsiness all her life in her hands and feet. She noticed
her balance is not good, doubts this can be corrected. I did
discuss with her the need for improving it ... since she has
been immobilized for such a long time, and that her balance
must be worse...." AR 432.
the patient moved somewhat slowly from sitting to standing.
She had a short but not antalgic gait. When she took off the
brace there was still moderate swelling. She was able to
heel-toe walk. She was able to stand "fairly well, not
good balance but fair on one leg, using her hand to support
herself. She is very restricted with her left ankle active
range of motion." Dorsiflexion was 2-4 degrees, plantar
flexion 35 degrees, eversion 10 and inversion 25 degrees. AR
Braunlin instructed her in calf stretching for her gastroc
and soleus muscles. AR 432. He demonstrated one-legged
standing balance improving her trunk sway, using a mirror for
feedback. He recommended use of a stationary bike. AR 432. He
treated her with gentle passive range of motion in the
talocrural and subtalar joints, not moving to end range. AR
432. Goals included gait improvement (Webb reported pain in
her fourth and fifth metatarsal regions when she pushed off
with her left foot). AR 433.
14, 2012, Dr. O'Toole noted that Webb was in physical
therapy to work on balance and prioprioception. AR 429. She
questioned the merit because her Chiari malformation affected
her balance. "Both her physical therapist and I
reassured her that our intent is to optimize her ankle
function in order to minimize any disturbance to her
balance." AR 429. She stated that her current pain level
was 3½/10 and that the topical gel benefited the pain
in her foot. The calf cramping had resolved. She had
occasional foot cramping. AR 429. On exam, her gait was not
antalgic, she had minimal ankle edema, was moderately
restricted in dorsiflexion and inversion, and had endpoint
tenderness with both. AR 30.
June 14, 2012, Dr. Jackson said that Webb had completed two
physical therapy visits, did not like the Superfeet and
stopped using them, and did not like the feel of the ASO
ankle brace. She complained of pain in the lateral ankle. AR
398. She was still working with restrictions of no stairs. AR
398. On exam she had grade 1 drawer and grade 1 to 2 tilt.
Peroneal eversion strength was weak 1-/5. She had no calf
pain and had full ankle and subtalar range of motion. AR 398.
Assessment was "satisfactory postoperative." He
recommended continued physical therapy and told her she could
try a MalleoTrain sleeve instead of the ASO. AR 398. He
advised no impact activity unless she was perfectly
comfortable with it. AR 398.
19, 2012, Dr. O'Toole assessed status post left ankle
arthroscopy for debridement and ligament reconstruction,
improving. The treatment plan was to continue physical
therapy as needed. Her work status was updated: she would
wean from the ankle brace as tolerated and avoid stairs. Dr.
O'Toole anticipated that Webb would be at MMI [maximum
medical improvement] at her next visit with Dr. Jackson. AR
19, 2012, Dr. Jackson wrote that the patient was working,
said she felt a little plateaued, had one more physical
therapy visit, and was a little bit more convinced that she
had made some progress. She wore both her ASO ankle brace and
MalleoTrain sleeve and wanted to wean out of them. On
physical exam she had grade 1 drawer and grade 2 tilt. She
had no tenderness, swelling, or calf pain and had good ankle
and subtalar range of motion. There was no calf pain,
tenderness, or swelling, and she was neurovascularly intact.
AR 397. Dr. Jackson said she "may ultimately plateau
with a little bit of intermittent pain. She is still at risk
of recurrence and instability." AR 397. He assessed her
as satisfactory postoperative. AR 397.
24, 2012, Dr. O'Toole reported that Webb continued
physical rehabilitation, working on balance and
proprioception. AR 425. Dr. O'Toole stated that Mr.
Braunlin had seen the patient yesterday when she came to the
clinic limping after a severe calf cramp. AR 425. "She
has been working as usual. She has attempted weaning from her
brace. She ... has been doing her recommended exercises....
Her sleep was still disturbed last night. Her pain level is
reduced today to 6/10." AR 425. On exam her gait was
non-antalgic, she had some muscle spasm in her left calf and
was tender to palpation of the proximal calf, and had
restricted dorsiflexion. AR 425. Dr. O'Toole assessed
calf tightness and spasm. He ordered lab work to evaluate for
electrolyte abnormalities and prescribed Flexeril. "She
remains on temporary restrictions of avoiding stairs and
weaning from her brace gradually as tolerated." AR 426.
27, 2012, Dr. O'Toole reported that Webb returned early
complaining of increased pain and cramping in the left calf.
He had refilled her Flexeril three days before but she had
not been able to pick it up. She was doing her directed
stretches. She also reported numbness on the back of the
calf. On exam, her gait was antalgic. The calf and ankle were
not swollen but there was spasm and tenderness in the calf
and diminished sensation in the calf. Supine and seated
straight-leg-raises were positive on the left. Reflexes were
absent at both knees. Reflexes were 1 at both ankles. Great
toe strength was 4 on the left, ankle dorsiflexion was 4
on the left and 5 on the right, and plantar flexion was 5/5
and equal. She had difficulty with the heel walk. AR 423. Dr.
O'Toole assessments included possible lumbar
radiculopathy. He referred Webb to Dr. Rebekah Martin for
electrodiagnostic testing and physiatric consult and took her
off work temporarily. AR 424. He noted that the recent
metabolic panel was remarkable only for a marginally elevated
glucose and slightly low AST. AR 424. "Date of MMI is
unknown at this time." AR 424.
30, 2012, Webb had a first-time visit with Amber Steves,
M.D., at Poudre Valley Health System, Family Medicine Center.
presented several concerns. AR 479.
She has a history of Chiari 1 malformations and as a result,
often has headaches associated with dizziness. She has been
evaluated by a neurosurgeon but is NOT interested in surgery
currently. The headaches sometimes go away with Excedrin, but
sometimes she needs to go home and sleep it off. She is
asking that I fill out FMLA [Family Medical Leave Act]
paperwork today so that they cannot fire her for her medical
condition. She states that currently she has headaches that
are bad enough to go home 2-4 times a month.
Steves noted the history of recent ankle surgery and the
patient's report, "She is having a lot of nerve pain
so they are going to be doing an EMG soon." AR 480. Webb
reported mood swings, "feels like her mood can go from
happy to tearful with no explanation, " although she
denied depression or anxiety and was not interested in
counseling. She did not have a history of psychiatric
diagnosis and had never been on a psychotropic medication. AR
480. She was interested in quitting smoking. AR 480.
Steves recorded medical history of morbid obesity, Chiari 1
malformation diagnosed after the delivery of her last child.
The patient had been pregnant three times and had three
normal vaginal deliveries. AR 480. She was married, employed,
drank alcohol occasionally and smoked 15-20 cigarettes a day.
review of systems Webb complained of headache and left leg
paresthesias, and mood changes. AR 480. Webb denied abnormal
gait, muscle aches and stiffness, anxiety, decreased
concentration, and depression. AR 480-481. Dr. Steves
reported (relevant) examination findings: full affect,
cooperative and oriented, grossly normal mental status, mild
swelling around the left ankle joint, normal upper extremity
reflexes, normal lower extremity reflexes, appropriate range
of motion and strength in upper and lower extremities, intact
cerebellar finger-to-nose test and intact rapid alternating
movements, 5/5 motor strength throughout and intact
sensation, and narrow-based gait. AR 481. Dr. Steves'
assessment was tobacco dependence syndrome, history of Chiari
1 malformation with resultant headaches, left ankle surgery
2012, and mood swings. AR 482. The treatment plan: Bupropion
(Wellbutrin) for tobacco cessation; mood swings (patient
declines counseling), and possible weight loss. Dr. Steves
filled out FMLA paperwork for the patient. AR 482.
31, 2012, Dr. Jackson recorded the patient's complaint of
cramping and now pain and numbness from the knee down,
laterally. AR 396. When she had this symptom before, a
Doppler was negative for DVT. She was not working currently.
On exam she had some tenderness around the leg. It was not
any more swollen than the opposite side. Dr. Jackson could
not reproduce the cramp. Straight leg raise was negative,
distal strength was good (eversion, inversion, dorsiflexion
and plantar flexion), and reflexes were normal. Dr. Jackson
discussed the treatment plan: "We know she does have a
Chiari malformation. I am not so sure that has much influence
on it.... She has not had this problem before, except after
her injury and subsequently surgery." Dr. Jackson
recommended EMG and NCV studies. AR 396.
August 15, 2012, Dr. O'Toole reported Dr. Rebekah
Martin's findings on August 7: significant for
electrodiagnostic evidence of peroneal mononeuropathy, both
demyelinating and axonal. There was evidence of
reinnervation. There was no electrodiagnostic evidence of a
lumbar or lumbosacral source of symptoms. AR 421. Dr.
O'Toole reported Dr. Martin's statement that she felt
the prognosis was excellent. She recommended application of
cold several times a day to the peroneal head region,
physical therapy with local iontophoresis and dorsiflexion
strengthening, and weaning from the ankle brace, which Webb
had already done. Webb still complained of painful cramping,
pain level 5-6/10. She took Bupropion. AR 421. Her blood
pressure was 146/100, and she had palpable cramping in the
calf, with reports of tenderness to palpation and
pins-and-needles sensation after compressing the lateral
lower leg just inferior to the fibular head. AR 421-22. She
had persistent 5- strength for great toe extension and ankle
plantar flexion. AR 422. Dr. O'Toole referred her to PT
and prescribed topical Gabapentin to apply around the fibular
head 3-4 times daily. AR 422.
August 23, 2012, Mr. Braunlin reported what Webb told him.
She had had continued pain and paresthesia and left leg and
cramping. She saw Dr. Martin. Since taking off her ankle
brace "per Dr. Martin, " she has improved. Her pain
and cramping were less. She was having only three cramping
episodes per days and was able to walk more. Paresthesias
continued in her left lateral shin. AR 419. Objectively her
gait was much less antalgic, and she went down stairs with
improved dorsiflexion with weight bearing. This was still
painful, however. She was able to heel walk with slightly
less dorsiflexion on the left compared to the right. She was
able to go up on her toes, although it was very weak and she
put more pressure on her right foot. She continued to have
tenderness with passive ROM in the left ankle, especially
dorsiflexion. AR 419. Mr. Braunlin designed a home exercise
program and she demonstrated the calf-stretching exercises
well, although she had 50 percent loss of range of motion
when demonstrating these. AR 419-20. "We will continue
to focus on [balance], although I recognize she has a Chiari
I malformation and will never have perfect balance." AR
420. Assessment was improved pain, improved function,
positive nerve conduction/EMG testing per Dr. Martin. AR 420.
Mr. Braunlin prescribed particular stretches and icing and
said that Webb would be seen weekly for three more weeks. AR
August 28, 2012, Dr. Jackson completed a report of Workers
Compensation injury identifying June 13, 2011, as the date of
a left ankle injury. AR 393.
August 30, 2012, Dr. O'Toole wrote a "closing note
impairment rating." He stated that working status was
restricted. AR 415. Webb noted improvement from discontinuing
ankle brace. AR 416. He reported the August 7 specific
electrodiagnostic test results. AR 415.
exam, Webb's blood pressure was 152/84, pulse 96, and
pain level 4½/10. AR 416. Gait was nonantalgic. She
had difficulty descending stairs. She had an area of
decreased sensation over the lateral malleolus. She had 4
great toe extension and dorsiflexion strength. Heel walk was
difficult. AR 416. Dr. O'Toole referred to the AMA
Guides to Evaluation of Permanent Impairment. "Her
best measurements were with 45 degrees of knee flexion. There
her dorsiflexion was to 0 degrees at the neutral position and
plantar flexion to 60 degrees. Inversion was 25 degrees,
eversion 10 degrees. He assessed left peroneal mononeuropathy
with both sensory and motor effect. AR 416. He completed
"closing form M164" and "made Miss Webb's
temporary restrictions permanent. These are avoiding stairs
and walking as tolerated." AR 417. Dr. O'Toole
Permanent impairment is assigned in accordance with the AMA
Guides to Evaluation of Permanent Impairment, 3rd Edition
(revised). Based on the active range of motion
measurements the dorsiflexion at 0 degrees past neutral
results in a 7% lower extremity impairment.... With inversion
at 25 degrees, she receives a 1% lower extremity impairment.
Eversion to 10 degrees results in a 2% impairment. The total
active range of motion impairment is 10% lower extremity.
For peripheral nervous system impairment under table 51
involvement of the common peroneal nerve, under sensory the
maximum impairment is 5%.
Because this limits activity, I have assigned a 50%
correction from table 10. This results in a 3% impairment.
For motor impairment, the maximum assignment is 35%. Applying
table 11, she has range of motion against gravity and some
resistance, so I have applied 25% which results in a 9% lower
extremity impairment. The combined value for peripheral
nervous system impairment is then 9%. Combining this with the
active range of motion impairment results in a 21% lower
extremity impairment.... The total lower extremity impairment
is 21% converted to a whole person impairment of 8%.
Further follow-up is as needed.
August 30, 2012, Dr. Jackson saw Webb. AR 394-95. Her
symptoms were unchanged. AR 395. She said the cramping had
not improved with iontophoresis. Dr. O'Toole had
prescribed therapy and she was also getting
"compounding" and did not think it was working.
Id. She had seen Dr. Rebekah Martin for EMG and
nerve-conduction study, which suggested a peroneal nerve
mononeuropathy that was "in evidence of resolution.
Apparently Dr. Martin has a conjecture that this is
compression related from either a cast or a Roll-ABout, which
is something that is almost completely unseen in orthopaedic
practice these days but certainly is not completely unheard
of." Id. Dr. Martin stated that he would be
"more prone to suggest that her popliteal nerve block
would [more likely have] set this off than any kind of
compression neuropathy." He said this seemed to be
"moving in the right direction although it may take
quite some time...." Id.
examination she had normal range of motion, strength, flexion
and eversion. Except for a few branches of the sural nerve,
she had normal sensation. She had no calf pain, tenderness
around the fibular head, or swelling. He assessed left lower
leg cramping and suggested adding nerve-stabilizing agents
like Lyrica or Cymbalta, and provided samples of Lyrica. He
stated that he thought most of her symptoms were
"somewhat nerve related." Therefore, Dr. Martin
could consider a sympathetic blockade since her symptoms were
consistent with someone who might be developing a complex
regional pain syndrome. AR 395. Her only restriction was no
stairs. Id. It was difficult to say when she would
reach MMI. AR 394.
September 14, 2012, Mr. Braunlin reported Webb's 12th and
last physical therapy visit. AR 409-10. He noted her original
injury was June 20, 2011, with surgery on March 7, 2012, and
postoperative complications of "left calf cramping,
which was disabling, which began around July, and persistent
left ankle and foot pain and paresthesia, and there was
electromyographic evidence of peroneal mononeuropathy."
AR 409. Mr. Braunlin reported Webb's statement that she
had "plateaued with progress and admits not being
consistent with her home exercise program, especially in the
last week." She reported that she continued to have
trouble going up and down stairs and had limited walking.
"She is able to walk approximately 15 minutes.... She is
very careful on uneven surfaces, she will use her brace,
which she stopped wearing due to the possibility this was
causing some of her neuropathy. Since she stopped wearing the
brace, her ... paresthesias improved; however, even in the
grocery store she can tell her ankle will tend to roll."
Objectively the patient had a fairly normal non-antalgic gait
and still had obvious discomfort, "very slow and
careful, " going up and down stairs one step at a time.
AR 409. Her active and passive range of motion was within
normal limits. Mr. Braunlin noted that Dr. Jackson had noted
subtle instability after surgery. AR 409. She had 5/5
strength but had pain going up on her toes and heels. AR
409-10. They discussed her home exercise program. AR 410.
They discussed her smoking. She had had a reaction to
Wellbutrin, still smoked 15 cigarettes a day and "may
pursue Chantix in the near future." AR 410.
Braunlin said, "I reiterated her home calf stretching
exercise program, her ankle range of motion, and her brief
one-legged balance exercises; she performed these all
well." He noted that she had had two iontophoresis
treatments that were not helpful and caused quite a bit of
discomfort when they were on her ankle. He discharged the
patient from therapy. AR 410.
November 7, 2012, Dr. Steves, Family Medicine Center,
Patient is here to discuss her mood and her headaches. She
recently tried the Wellbutrin and although it helped her
smoking, it makes her anxiety much worse. She also tried
Paxil with no improvement and has since quit her job because
she gets very anxious being around people for more than one
hour. She reports difficulty sleeping, weight gain,
anhedonia, but denies SI/HI. The patient talked to her
parents, and her mother is on Zoloft and has had good
results. She is not interested in counseling at this time.
The patient also has headaches secondary to a Chiari
Malformation and states her headaches are now daily, and she