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Webb v. Berryhill

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

March 5, 2018

AMBER LEI WEBB, Plaintiff,




         INTRODUCTION .............................................................................................. 1

         FACTS ............................................................................................................ 1

         A. Procedural History .................................................................................. 1

         B. Work History .......................................................................................... 4

         C. Ms. Webb's Statements and Testimony ................................................... 5

         D. Medical Evidence - Chronological ......................................................... 21

         E. Medical Literature ................................................................................ 78

         F. Opinion Evidence ................................................................................. 79

         G. The ALJ's Decision ............................................................................... 86

         H. Issues Before This Court ...................................................................... 87

         DISCUSSION ................................................................................................ 88

         A. Standard of Review ............................................................................... 88

         B. The Disability Determination and the Five-Step Procedure .................... 90

         C. Burden of Proof. . .................................................................................. 91

         D. Did the ALJ Err in Determining the Disability Onset Date? ................... 92

         E. Did the ALJ Err in Failing to Identify Severe Musculoskeletal Impairments at Step Two? ................................................................. 100

         F. Did the ALJ Err in Failing to Order Consultative Examinations? ......... 108

         1. Duty to Develop the Record-Consultative Exams ............................ 109

         2. Consultative Exam as to Impact of Obesity on Functioning .............. 110

         3. Consultative Exam as to Mental Diagnoses and Mental RFC ............ 116

         4. Consultative Exam as to Stage of Hidradenitis Suppurativa ............. 122

         G. Did the ALJ Err in Assessing Ms. Webb's Credibility? ......................... 126

         1. The Law Applicable to Determining Validity of Subjective Complaints ...................................................................................... 126

         2. Failure to Follow Recommended Treatment ...................................... 132

         3. Impairments are Well-Controlled with Medications .......................... 137

         4. Activities of Daily Living Inconsistent with the Described Severity of Symptoms ...................................................................... 139

         H. Did the ALJ Properly Evaluate Medical Sources' Opinions? ................. 142

         1. Dr. Houston's Opinion ..................................................................... 143

         2. Opinions of Dr. Kamer, Dr. Canham and Dr. Erickson ..................... 147

         3. Dr. O'Toole's Opinion ....................................................................... 149

         I. Did the ALJ Apply the Correct Standard to Determine the Availability of Jobs at Step Five? ........................................................ 156

         J. Type of Remand .................................................................................. 160

         CONCLUSION ............................................................................................. 162


         Plaintiff, 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.

         This 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 administrative proceedings.


         A. Procedural History

         On November 14, 2012, Amber Webb applied for SSD[2] 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 277-78.

         On September 12, 2013, SSA in Colorado issued a notice of disapproved claim and notified Webb of her right to appeal to hearing.[3] AR 171-73. On October 1, 2013, Webb appointed Attorney John Heard of San Antonio, TX, to represent her. AR 169.

         On 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.

         On 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.

         On 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." AR 364.

         On March 25, 2015, ALJ Debra J. Denney, ODAR, sent a notice of hearing scheduled for July 20, 2015, in Rapid City. AR 238.

         On July 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.

         On 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.

         B. Work History

         Webb's 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.

         In 2011 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.

         Webb 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 ¶ 315-20.

         Webb 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.

         The ALJ 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.

         The ALJ 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.

         C. Ms. Webb's Statements and Testimony

         On 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.

         In her disability report on or about November 14, 2012[4], 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. AR 294.

         She 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" (uncontrollable).

AR 295.

         She 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.

         She reported her medications: Percocet[5] prescribed by Orthopedic Center of the Rockies for pain control; Sertraline[6] (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.[7] Dr. Curiel referred her to Dr. Coester. AR 298-99, 301.

         In 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, 303.

         In 2007 she was seen at Surgical Specialists of the Rockies, 2315 E. Harmony Rd, Ste 130, Ft. Collins, for hidradenitis suppurativa[8] surgery. AR 300, 304.

         From 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.

         In 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 299-300.

         Webb stated in her disability report that she struggled daily with the pain and embarrassment of her medical problems. AR 306. She stated:

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.

AR 306.

         Webb 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.

AR 307.

         The 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.

         Asked 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.

         She 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.

         She 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.

         Webb's 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.

         Asked 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.

         Webb 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.

         She 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.

         In the "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.

         Webb 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[9] 750 mg. (75% effectiveness at best) and Tylenol 100 mg. (60% effectiveness at best). AR 327.

         On July 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.

         On July 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 332.

         On 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.

         On April 2, 2014, Webb, with assistance of Attorney Heard, completed an updated disability questionnaire, reporting nothing new. AR 353-56.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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, [10] 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."[11] 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.[12] AR 74.

         Webb 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, [13] which was effective for a while but lost effectivity. AR 76. Dr. Finley had given her Nortriptyline, "which never worked...." AR 76.

         Dr. 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." AR 76.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

         Webb 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.

AR 374.

* * *
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.

AR 374.

         During the same time frame, Webb stated, "I was dealing with my Hidradenitis Suppurativa.”

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.

AR 374-375.

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....

AR 375.

         Webb 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.

         She 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.

         Webb 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. AR 376.

         She 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.

         Webb submitted an undated addendum to her letter, stating that she had had appointments with her neurologist and dermatologist, and

[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.

AR 372.

         D. Medical Evidence - Chronological

         On July 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.

         On July 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.

         On 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.

         On 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.

         On 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 454.

         Webb 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 454-55.

         Webb 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 was good.

         On 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[14] 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.

         Exam 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.

         On 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][15]. 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][16] 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.

         On 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.

         She had "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.

         Mr. 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.

         On 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.

         On 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. AR 406.

         On 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.

         On 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[17] and would use Benadryl for the itching. AR 405.

         On 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 404.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.[18] 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 399.

         On May 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.

         On June 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.

         Objectively 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 432.

         Mr. 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.

         On June 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.

         Also on 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.

         On July 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 428.

         On July 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.

         On July 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.

         On July 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.

         On July 30, 2012, Webb had a first-time visit with Amber Steves, M.D., at Poudre Valley Health System, Family Medicine Center.

         Webb 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.

AR 480.

         Dr. 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.

         Dr. 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. AR 480.

         On 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.

         On July 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.

         On 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.

         On 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 420.

         On 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.

         On 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.

         On 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 stated:

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.

AR 417.

         On 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.

         On 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.

         On 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.

         Mr. 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.

         On November 7, 2012, Dr. Steves, Family Medicine Center, reported history:

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 ...

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