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Porter v. Berryhill

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

May 9, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, [1] Defendant.



         Table of Contents

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

         FACTS ............................................................................................................ 2

         A. Procedural History ............................................................................... 2

         B. Background ......................................................................................... 3

         C. Vocational Evidence ............................................................................. 4

         D. Medical Evidence - Chronological ........................................................ 4

         E. Claimant and Lay Witness Statements ............................................... 69

         F. Opinion Evidence .............................................................................. 76

         G. ALJ's Decision ................................................................................... 78

         H. Issues Before This Court .................................................................... 79

         DISCUSSION ................................................................................................ 80

         A. Standard of Review. . .......................................................................... 80

         B. The Disability Determination and the Five-Step Procedure. . ............... 82

         C. Burden of Proof. . ............................................................................... 83

         D. Did the ALJ Err in Determining the Alleged Disability Onset Date? .... 84

         1. Why Does the Disability Onset Date Matter? ................................... 84

         2. The Law Applicable to Determining Alleged Onset Date ................... 87

         a. Onset Date After Denial of an Earlier Application ............................ 87

         b. Res Judicata ................................................................................... 90

         c. Determination of Onset Date Without Consideration of the Fact That There Was a Prior Application ................................... 92

         E. Did the ALJ Err at Step Two in Determining Severe Impairments? ....... 95

         1. Applicable Law and ALJ Findings .................................................... 96

         2. Mental Impairment ......................................................................... 98

         3. Left Knee ...................................................................................... 109

         4. Sacroiliitis .................................................................................... 113

         5. Myofascial Pain Syndrome ............................................................ 115

         F. Did the ALJ Fail to Develop the Record as to Pulmonary and Psychological Impairments? ............................................................... 117

         1. Duty to Obtain 12 Months' of Pre-Application Records .................. 118

         2. Consultative Examination on Mental Impairments ........................ 119

         3. Consultative Examination on COPD .............................................. 125

         G. Was the ALJ's RFC Assessment Supported by Substantial Evidence? .... 133

         1. The Law Applicable to Formulation of RFC .................................... 134

         2. Physical RFC ................................................................................ 137

         a. Back, Hip, Myofascial Pain Syndrome, Complaints of Pain, and Absenteeism for Physical Therapy Appointments ........................... 137

         b. Left Knee ...................................................................................... 141

         c. COPD ........................................................................................... 143

         d. Nontreating Nonexamining Physicians' Opinions ........................... 146

         3. Mental RFC .................................................................................. 147

         H. Did the ALJ's Step Five Decision Comply with the Law? ................... 148

         I. Type of Remand ................................................................................. 152

         CONCLUSION ............................................................................................. 154


         Plaintiff, Kimberly Porter, [2] has filed a complaint seeking judicial review of the Commissioner's final decision denying her Title II application for a period of disability and disability insurance benefits and her Title XVI application for supplemental security income.[3]

         Ms. Porter now moves this court for an order reversing the Commissioner's final decision and remanding for further consideration. See Docket Nos. 18, 19 and 21. Nancy Berryhill, Deputy Commissioner for Operations (“Commissioner”) urges the court to affirm her decision below. See Docket 20.

         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 both parties in accordance with 28 U.S.C. § 636(c). Based on the facts, law and analysis discussed in further detail below, the court reverses and remands for further consideration.


         A. Procedural History

         Kimberly L. Porter filed for concurrent disability benefits on November 17, 2011, went to hearing on May 29, 2013, and was denied on June 4, 2013. AR30, 98.

         She reapplied on August 27, 2013. AR212. The SSA field office's explained reason for selecting a potential onset date of June 5, 2013: “prior claim denied by ALJ 06/04/2013.” AR228.

         The state agency initial denial was dated January 2, 2014. AR145. The reconsideration denial was dated August 1, 2014. AR152. On August 14, 2014, claimant a requested hearing. AR166.

         Hearing was accorded on December 30, 2015, with the claimant and her attorney, Josh Decker, appearing in Rapid City, SD, and ALJ Michael A. Kilroy presiding from the Billings, Montana, ODAR location. AR55. On January 22, 2016, the ALJ issued a step five denial. AR14-23.

         Porter, by current counsel, Catherine Ratliff, requested Appeals Council review despite failing to timely appeal the ALJ's decision. AR10. Porter also submitted a January 17, 2017, MRI of her knee. AR8, 309.

         On February 23, 2017, the Appeals Council declined review, after finding good cause for the claimant's untimely request for review. AR1. The Appeals Council found that a one-page medical record, referring to the MRI, from Rapid City Regional Hospital was dated January 17, 2017, and the ALJ decided the case through January 22, 2016; therefore, the evidence did not affect the ALJ's decision. AR2. Porter's date-last-insured for SSD was December 31, 2016. AR228.

         B. Background

         Porter was born in 1970. AR212, 214. Her father suffered from alcoholism and heart disease. A brother suffered from alcoholism and diabetes. A sister suffered from diabetes.[5] AR546. Porter did not state the highest grade she attended in school and merely reported she obtained a “GED, ” in January 1996. AR64, 233. She never married. AR212, 214. She had three children born in 1990, 1992, and 1996, and one child was born prematurely.[6] AR545.

         C. Vocational Evidence

         Porter has work experience as a childcare provider. AR233, 277. Porter stated that she performed childcare from 2001 to 2012. AR277.

         From age 18 (1988) to age 32 (2002), Porter's approximate reported regular earnings were in 1988 ($285), 1989 ($535), 1992 ($463), 1993 ($2307), and 1994 ($49). She had earnings in 2003 ($7081), 2004 ($9306), 2006 ($7903), 2007 ($8956), 2008 ($7670), 2009 ($9967), 2010 ($9003), 2011 ($5569), and 2014 ($1154). AR220-21.

         The detailed earnings report shows names of employers since 2000. AR222. Porter worked for “Maid to Order” in 2003-04, Barry Burgess in 2004, and was self-employed from 2006-2011. AR222-23. She reported that she was a childcare provider January 2008 to September 2011, working 40 hours a week, and earning $50 a day. AR233.

         She described this work in her disability report: she watched, fed, and taught children. She lifted them, and the heaviest weight she lifted was 20 pounds. AR234.

         D. Medical Evidence - Chronological

         Disputed statement of fact: On February 7, 2013, Porter had a cervical spine soft-tissue neck series, using soft-tissue technique, which showed straightening of the cervical spine and degenerative changes particularly at C5-C6. AR776-77. End disputed statement of fact.

         On March 14, 2013, Porter saw Jennifer Thielen, PA[7] at the community health center, for heartburn, smoking cessation, and left knee pain. AR564. She stated that Prilosec did not help even when she doubled the dose. Id. She was interested in stopping smoking. Id. She reported smoking for 20 years, one-half pack a day on average. She denied depression, but acknowledged irritability at times. Id. She complained of left knee pain (pointed to the lateral collateral ligament), going back 5 years when Dr. Den Hartog did surgery on this knee and shortened the ligament on the outside of the knee. Id. “She brings my hand to exactly the area that is hurting her, and it is her IT band.”[8]Id. She described a feeling of extreme tightness here.

         Porter told PA Thielen that she recently had engaged in 4 months of physical therapy, ordered by Christina Cote, DO, physiatrist, [9] and said that she was diligent about going to therapy and following directions, and it did not help; she still dealt with the pain and stiff feeling. Id. Objectively PA Thielen noted some tightness of the left IT band compared to the right, but no instability, pain to palpation or swelling. Id. PA Thielen assessed esophageal reflux and left knee joint pain. AR565. She planned a consult with Bryan Den Hartog, MD, orthopedic surgeon, and an EGD by a gastroenterologist. Id. PA Thielen prescribed Dexilant[10] for reflux, and Chantix[11] for smoking cessation. Id.

         On April 17, 2013, Porter saw Bryan Den Hartog, MD, orthopedic surgeon, for her persistent left knee problems. AR825. Dr. Den Hartog reported, “We have scoped that twice and debrided the fairly significant full- or partial-thickness cartilage defects of both femoral condyles, the trochlear groove, and the patella.” Id. The last operation was in 2008 and provided fairly good pain relief for at least 3 years. The last year and a half the pain had been gradually recurring and was more significant. Id.

         Dr. Den Hartog noted that Dr. Cote had injected cortisone into the knee 3-4 months earlier and it did not help much, but gave a little relief. AR825. The knee hurt mostly when Porter tried to kneel or squat. Dr. Cote had placed her on “those kinds of restrictions.” Id. Objectively, she was a thin, well-developed, well-nourished female in no acute distress. She had a positive patellofemoral grind test. She did not have instability or effusion. Id. The x-rays, 4 views, showed “some significant arthritic changes and change in contour of the femoral condyles on the left knee. The patella femoral joint is involved as well.” Id.

         Dr. Den Hartog assessed mild to moderate degenerative joint disease (DJD) of the left knee. AR825. He injected Euflexxa.[12] Id. He explained the medical reason for Euflexxa was Porter's somewhat refractory response to cortisone. AR826. She would see Dan Palmer, PA-C, for the second and third set of injections. Id.

         On April 25, 2013, Porter saw PA Thielen to discuss smoking cessation. AR563. Chantix had made her sick. She complained of moodiness and anxiety issues and presented for evaluation of possible bipolar disorder. Id.

         She told PA Thielen, “everyone tells her that she is moody. She says that her moods are up and down. One minute she can be happy and the next minute ‘I'm crabby and cussing everyone out.' ” Id. She had been on Prozac[13]when very young. Chantix worsened these symptoms. She felt really down some days, but not all the time. She complained of anhedonia and social withdrawal. “She says, ‘I come in to town to do what I gotta do' and gets back home.” Id.

         She denied suicidal thoughts. She had had some feelings of hopelessness. She denied flight of ideas, reckless behaviors, inability to sleep and excessive energy. Id. She scored 33 on Beck's depression inventory, placing her in the severe depression category. She had high irritability, depression with feelings of hopelessness, anhedonia, and social withdrawal. Id. PA Thielen reported that eye contact and affect were appropriate, and that Porter was well-groomed, had well organized and articulate speech, and had no abnormalities of movement, thought content, perception, or process. AR563-564.

         PA Thielen counseled Porter on tobacco cessation and encouraged her to “seek additional medical attention if depression worsens, or if they begin feeling suicidal.” Id. PA Thielen stated, “Her symptoms don't really sounds like bipolar disorder to me. I think she has more mood lability.” Id. She prescribed Zyban[14] [Bupropion] to see if it would help depression, mood lability, and smoking cessation. If that did not work, PA Thielen stated that she would try a different antidepressant or add a mood stabilizing medication such as Abilify.[15] Id.

         On April 26, 2013, Porter saw PA-C Palmer for Euflexxa #2 injection of the left knee. AR824.

         On May 3, 2013, Porter saw PA-C Palmer for Euflexxa #3 injection of the left knee. AR823.

         On May 31, 2013, Porter saw PA Thielen to follow up her complaints of depression. AR561. She had been on Zyban almost a month. At first, it helped with smoking cessation. She was down to a half-pack but was back up from this now. Id. PA Thielen noted the patient's thought that she smoked from “boredom. She smokes because she doesn't want to get out and do anything and just sits a[t] home….She cries frequently. She reports that her moods are up and down. She is very irritable. She does have a lot going on right now.” Porter had had a disability hearing, cried in front of the judge, and was very anxious about the situation. “She feels anxious much of the time.” Her symptoms were anxiety, high irritability, and depression with feelings of hopelessness, anhedonia, social withdrawal, and loss of interest in friends and family. Id. She woke frequently at night and thought she got about 4½ hours of sleep. AR562.

         On auscultation, her lungs were clear and respiration was normal. AR562. PA Thielen reported unremarkable physical and psychiatric clinical examination except for depressed affect. She assessed depression with anxiety and emotional lability. Id. She encouraged Porter to seek additional medical attention “if depression worsens, or if they begin feeling suicidal.” Id. She prescribed Viibryd[16] and told Porter to continue Zyban.

         On July 5, 2013, Porter returned to PA Thielen to follow up her depression. AR328. PA Thielen noted that she had added Viibryd to Porter's Wellbutrin[17] the previous month in an attempt to better control her depression. “She states that this medication combination is working wonderfully for her. Her boyfriend says ‘You're like a different person.' ” She previously had been on other antidepressants: Prozac had adverse side effects, and Cymbalta[18] didn't work. Id. She stated that she had not quit smoking completely. Porter said that the first week or so Viibryd helped with smoking cessation and now she was smoking a little more again, but less than before. She was continuing to work on this. Id.

         On this day her Beck depression inventory was 12, consistent with mild mood disturbance. She woke easily. She had anhedonia but endorsed no other symptoms of depression. Id. She was well groomed, had no abnormal movements, an appropriate affect, and no abnormalities in thought content, perception, or process. AR329. PA Thielen diagnosed depression with anxiety, and emotional lability. AR329.

         On August 6, 2013, Porter sought ER treatment for severe low back pain with radiation into both legs and saw Kelly Manning, MD. AR758. Porter told Dr. Manning that she'd had this for a long time and saw Dr. Cote regularly for the condition. Id. She felt that the pain was worse. Id. On exam, her lower back and paraspinals were tender. Id. Her extremities had no edema, or evidence of gross weakness. Id. She was alert, oriented and had normal mood, affect, memory and judgment. Id. Dr. Manning's impression was radicular low back pain that was recurrent. She provided analgesics and encouraged Porter to see her outpatient physician. AR759.

         On August 23, 2013, Christina Cote, DO, Rapid City Regional Hospital saw Porter upon Community Health Center's referral pursuant to contract with the South Dakota Department of Human Services. AR316. Porter's chief complaint was chronic pain. Her problem list included chronic postoperative pain; pain in her ankle and foot; degeneration of lumbar or lumbosacral disc; other disorders of muscle, ligament and fascia; myalgia and myositis unspecified; neuralgia, neuritis and radiculitis, unspecified, acquired deformities of the knee; lesion of the plantar nerve; hallux rigidus; and insomnia. Her medications were Bupropion, Dexilant, Ibuprofen, [19] Nortriptyline, [20] Pennsaid[21] topical drops for the right knee, and vitamin D. AR316.

         She had a surgical history of arthroscopy in both knees. AR317. On exam, Porter was five-feet-six and 155.5 pounds. She reported a pain level of 10. AR318. She reported eight months of chronic pain, the worst pain today. Id. It was located in her left hip and left low back, described as a deep ache and stabbing pain, worse (10/10) with activity. She had just moved into a new house and had been unpacking and cleaning. Id. Any activity such as mowing, mopping, sweeping made pain worse. AR318. Dr. Cote reported that the patient was oriented, with appropriate mood and affect, and intact recent and remote memory.

         Dr. Cote performed a detailed cranial nerve examination and assessment of tenderness, spasm, bony abnormalities, strength and reflexes of the cervical and lumbar spine, and observation of gait and posture. All findings were normal, and Dr. Cote reported full range of motion, 5/5 muscle strength, and normal sensation. AR319. Porter's back had no tenderness or spasms. Id. She assessed myofascial pain syndrome, neuropathic pain, and chronic postoperative pain of the right knee. Id. Dr. Cote prescribed topical Pennsaid for the myofascial pain syndrome and right knee pain, and Nortriptyline for neuropathic pain. Id.

         On August 29, 2014, PA Thielen saw Porter for complaints of left hip pain radiating down her leg for a week, when up and moving. AR327. Porter reported pain in her low back and, for 2-3 weeks, numbness intermittently down the left leg. The past week she had had significant pain into her left buttock. Id.

         On examination, PA Thielen found tenderness to palpation in the left paraspinous lumbar region, some difficulty with ambulation secondary to pain, and left sciatic notch tenderness. AR328. PA Thielen found that straight-leg-raising on the left was limited by stiffness. Strength and reflexes were normal. Id. She assessed lumbago with sciatica and planned an MRI of the lumbar spine. Id. PA Thielen prescribed Prednisone 40 mg. a day for 5 days; rest, alternating heat and ice 20 minutes at a time 2-3 times a day. She prescribed Viibryd, 40 mg. and physical therapy. Id. PA Thielen noted that Porter saw Dr. Cote for pain management and encouraged her to discuss this again with her. Id.

         On September 4, 2013, Leo Flynn, MD, of Dakota Radiology, interpreted a non-contrast MRI of the lumbosacral spine, reporting that degenerative changes at L5-S1 had increased since 2009 imaging. AR331. At L4-L5, Dr. Flynn saw mild facet joint degenerative changes and possible minimal left foraminal disc protrusion. At L5-S1, he reported degenerative disc changes, loss of disc space height, mild diffuse bulge, mild left facet arthrosis, posterior annular tearing and a small left foraminal disc protrusion causing mild foraminal encroachment which could affect the exiting L5 nerve root. His overall impression was:

1. Moderate chronic degenerative disc and endplate changes at L 5-S1 with a small left foraminal disc protrusion. This appears to be contacting the left L5 nerve root. No. high-grade spinal stenosis.
2. Suspicious for a very small left foraminal disc protrusion at L4-L5 close to the existing left L4 nerve root.

AR331, dup. AR641.

         On September 13, 2013, PA Thielen dispensed Vicodin[22] for pain. AR327.

         On September 24, 2013, Porter saw PA-C Palmer for her left knee pain. AR821. She reported mild relief from the Euflexxa series and some relief with physical therapy. Id. She said the pain was mostly in the distal lateral knee. Id. On examination she had crepitance and a positive grind test. She had mostly mild tenderness with the most specific tenderness at distal insertion of the iliotibial band on the lateral femoral condyle. Id. She had no instability with varus and valgus stress, or anterior and posterior drawer. Id.

         X-rays showed mild medial joint space narrowing and degenerative changes within the patellofemoral joint. PA-C Palmer assessed the IT band tendinitis and mild DJD of the left knee. Id. PA-C Palmer injected cortisone into the insertions of the IT band. AR822. Following the injection Porter reported marked relief of pain. Id.

         On October 15, 2013, Amber Davidson, PA student under PA Thielen's supervision, saw Porter to follow up her depression. AR326. Porter stated that she was doing well on her current medications. She had minimal feelings of depression and her moods were stable. Id. She had started Wellbutrin to help her stop smoking but had not had much luck with this. She had used Quitline in the past and would try to use it again. Id.

         Subjectively, Porter reported continued low back pain with left side radiculopathy. AR326. Her MRI showed some impingement on the L5 nerve root. Id. Ms. Davidson said she would refer Porter to neurosurgery.

         Ms. Davidson reported her examination showed Porter was in no acute distress, was oriented to person, place and time, had normal respiration, normal cardiovascular clinic examination, and no psychiatric disturbance of note. AR326. Porter was well groomed, well developed, well nourished, in no acute distress, alert and oriented. Id. She had well organized and articulate speech, she answered questions and readily divulged information, eye contact was appropriate, there were no abnormal movements, her affect was appropriate, and she had no abnormalities in thought content, perception or process. Id. Davidson planned a neurology consult, encouraged the patient to find a place to walk indoors, and encouraged her to quit smoking again. AR326.

         On October 22, 2013, Ashley Pfeiffer, DPT (doctor of physical therapy), reported an initial evaluation for chronic left knee and low back pain. AR409. DPT Pfeiffer reported that Porter presented with significant IT band and lateral quad tightness and restrictions. AR410. DPT Pfeiffer observed decreased lumbar active range of motion in all planes, and poor frontal plane hip weakness. Id. Anterior drawer and Lachman's tests[23] were negative. Porter had zero degrees of knee extension, 94 degrees of left knee flexion, 4/5 left knee extension strength, and 4 left knee flexion strength. Id.

         DPT Pfeiffer believed Porter's left knee pain appeared secondary to arthritic symptoms along with restricted lateral muscle complex and decreased hip and core strength. AR410. She planned therapy 3 times a week for 6 to 8 weeks, to include therapeutic exercise, neuromuscular re-education, and manual therapy, plus modalities for pain control in order to improve flexibility, range of motion, strength, and function for Porter's bilateral hips, knees and low back. Id.

         Also on October 22, 2013, Porter saw PA-C Palmer for follow-up of left knee pain. AR820. She said she was markedly better post injection. She was starting physical therapy. She now complained more of pain in the anterior knee. “She has known patellofemoral arthritis, chondromalacia patella. She completed a Euflexxa series nearly six months ago, and this did give her some relief … but she is getting recurrent symptoms.” Id. On exam, she had a positive patella grind test and crepitance in the patellofemoral joint, no instability of the knee, and minimal tenderness at the distal IT band insertion laterally. Id. PA-C Palmer assessed patellofemoral arthritis and IT band syndrome, improved. He planned a repeat Euflexxa series, and noted that she would see a physical therapist for quad and VMO (vastus lateralis oblique) strengthening and patellar stabilization. Id.

         Porter had physical therapy sessions on October 23 (75 minutes), October 28 (70 minutes), October 29 (75 minutes), November 1 (75 minutes), November 5 (90 minutes), and November 6 (75 minutes), 2013. AR414, 415, 417, 419, 421, 423.

         On November 8, 2013, Porter underwent a left L5-S1 transforaminal epidural steroid injection for her L4-L5 radiculopathy by Dr. Trevor Anderson at Black Hills Surgical Hospital. AR367, dup. at AR396.

         On November 12, 2013, Porter saw PA-C Palmer at Black Hills Orthopedic & Spine for her second set of Euflexxa injections, the first series in the set in her left knee. AR818.

         On November 13, 2013, Porter sought ER treatment for left knee and left hip pain after a fall, and saw John Hill, MD. AR748. Her back was not tender. She had mild tenderness with range of motion of the left knee and left hip. Id. X-rays of the left knee were normal. AR749. Left hip x-rays showed calcification in the pelvic soft tissues on the left side, also shown on a prior CT scan (at AR 751), which were likely phleboliths. Id. Dr. Hill discharged her with a prescription for anti-inflammatories and pain medications. AR750.

         On November 16, 2013, Porter sought ER treatment for hip pain after she had fallen and landed on her left hip. AR740. She saw Donald Neilson, MD. She reported a history of chronic left hip pain. There was no weakness or edema, she had normal pulses, and mild tenderness over the right greater trochanter. Dr. Neilson treated her with Toradol in the ER and gave her a prescription for Naprosyn. Id.

         On November 19, 2013, Porter underwent her second series in the second set of Euflexxa injections. AR816.

         On November 20, 2013, Porter had a 70-minute physical therapy session with DPT Pfeiffer. AR430. She told DPT Pfeiffer that after another injection she had no change in pain. AR429. DPT Pfeiffer stated that if no physical therapy gains were seen after a week she would be discharged. AR430.

         On November 26, 2013, Porter had a 70-minute physical therapy session. AR431. DPT Pfeiffer said she would be discharged after 2 more visits due to no further gains. AR432.

         On November 26, 2013, Porter saw PA-C Palmer to complete the Euflexxa series to her left knee and also evaluate left elbow pain, which she had had for several weeks. AR814. Porter reported that her elbow was stiff and painful in the morning and that her left knee was somewhat improved from the Euflexxa treatment. Id. She reported that a bulging disc caused some radicular left leg pain, and PA-C Palmer commented that a bulging disc could also produce left knee pain.

         On examination, PA-C Palmer found a tender lateral epicondyle, pain with resisted wrist extension, pronation, and supination. Porter had full range of motion of the left elbow. PA-C Palmer assessed lateral epicondylitis of the left elbow and osteoarthritis of the left knee. Id. He completed the Euflexxa series. AR815. He discussed treatment for lateral epicondylitis: stretches, elbow pad, ice, heat, NSAIDs, and pain cream. Id.

         On November 27, 2013, Crystal Walton, PA at The Rehab Doctors, saw Porter after her transforaminal epidural steroid injection. AR366. Porter stated that “she still cannot stand or walk or do dishes without having severe pain. The injection did resolve her pain when she is lying down … [S]he is in physical therapy and that has not helped … Her Nortriptyline helps her at night.” The diagnosis was left L4 and L5 radiculopathy. Id.

         On November 27, 2013, DPT Pfeiffer wrote a discharge summary. AR511. DPT Pfeiffer noted Porter could perform home exercises properly. And the anterior drawer test and Lachman's test were negative. AR511-12. Subjectively, the patient felt “confident doing exercises at home.” She also reported she had had knee surgery with arthroscopic debridement; she ascended and descended stairs with significant pain; she was able to walk <5 minutes without significant pain; she scored 23 on the lower extremity functional scale; and she was unable to squat without pain. Id.

         Knee extension was 0 degrees bilaterally, knee flexion was 120/125 degrees bilaterally. AR512. Knee strength was 4- to 5-/5. DPT Pfeiffer said the patient had been seen for 12 sessions with no gains in pain levels or improvement in function. The one goal she had met was the ability to perform home exercises properly. Goals for stairs, walking, and squatting were not met. Since she had plateaued, she was discharged. Id.

         December 20, 2013, Porter saw Kristie Waddell, CNP at community health for gastroenteritis. AR476-77. Her medications were Ibuprofen, Vicodin, Dexilant, Nortriptyline, Bupropion, and Viibryd. AR 476.

         CNP Waddell reported a review of systems and clinical examination that were unremarkable, including gastrointestinal symptoms. AR477. She prescribed medications and diet for diarrhea. Id.

         On December 27, 2013, Porter saw Anne Fisher, MD, at the ER for low back pain after slipping and falling on a patch of ice. AR722. She smoked half a pack a day. Id. On physical examination she was sitting in a semi-Fowler's[24]position, had diffuse lower back tenderness, and reported paresthesias of her feet. DTRs were 2 at the knees and 0 at both ankles. She had no weakness, normal sensation, and normal mood, affect, memory, and judgment. Id. Dr. Fisher compared lumbar spine series (report at AR725) with the September 2013 lumbar MRI. AR723. She noted narrowing of the L5-S1 disc space, which was a change. Id. Dr. Fisher treated Porter with IV Morphine on top of Fentanyl that she received prehospital and she was able to ambulate. Id. She was discharged improved. Id.

         On January 5, 2014, Porter underwent a sacroiliac joint injection at Black Hills Surgery Center. AR525.

         On January 9, 2014, Porter saw Trevor Anderson, MD, at The Rehab Doctors on referral from Jonathan Wilson, MD. AR362. Dr. Anderson reported the history: 9 years ago she woke with back and leg pain, left greater than right. She had gone to physical therapy, experienced some improvement, but had recurrent flare-ups since then. Id. In August 2013 she had to go to the ER with significant pain. Id.

         On the pain diagram Porter indicated aching in her left buttocks; burning, tingling and numbness in her posterior legs to the bottom of her feet; and low back pain. AR362. She reported that pain levels ranged from 4 to 10, affected her sleep, and that pain was worse with sitting, standing, lifting, bending, twisting, and walking. Pain was relieved by lying down, ice, and medications. She described sensations of weakness, tingling, and numbness in her legs and feet. Activities of daily living were limited: walking, stairs, picking up objects off the floor, lifting, reaching, shopping, working and exercise. Id.

         She had seen Drs. Anderson, Wilson, Cote, and Community Health for this complaint. AR362.

         Dr. Anderson noted the radiologist's findings on the September 2013 lumbar spine MRI. AR362. He noted the November 2013 epidural that allowed Porter to sleep better and lie down afterward but overall was not terribly helpful. Id. In further discussion, however, Porter said she thought she had benefit later on; she said she would consider a repeat injection. Id.

         Dr. Anderson noted that Porter had undergone trials of Tylenol, Ibuprofen, Meloxicam, [25] Celebrex, [26] Prednisone, Tramadol, [27] Hydrocodone, [28]Gabapentin, [29] Nortriptyline, Pennsaid gel, epidurals, ice, and physical therapy multiple times, and a TENS unit. AR362. He noted her history of arthroscopic knee surgery. Id. She had smoked for 20 years, one-half pack a day. Id. She denied alcohol use. Id.

         Porter's review of systems was negative except for depression, low back and bilateral leg pain. AR363. On examination, she was able to walk on toes and heels; squat, perform tandem gait, and had a normal Romberg test. Strength, sensation, and reflexes were normal. Lumbar range of motion was very limited throughout with midline lumbar spine pain. Dr. Anderson observed a left “up-slip.”[30] Id.

         Dr. Anderson reported normal smooth lumbar pelvic rhythm. AR364. Porter was tender to palpation over the L5 spinous process, and over the sacroiliac (SI) joint and piriformis, left greater than right. Id. The supine piriformis test[31] provoked on the left greater than right. The Faber[32] test provoked groin pain. Id. Straight-leg-raising at 45 degrees caused bilateral calf pain. Prone extension and reverse straight-leg-raise[33] did not change her pain. Id. Dr. Anderson diagnosed L5-S1 radicular symptoms with an SI joint component. Dr. Anderson recommended a repeat left L5-S1 transforaminal epidural and physical therapy. Id.

         Dr. Anderson wrote to Dr. Wilson stating, “As you know, she has stenosis at L5-S1 and bilateral radicular symptoms. She also has some secondary S1 and piriformis pain.” AR365. He recommended repeating the epidural and physical therapy. Id.

         On January 13, 2014, Dr. Anderson performed a left L5-S1 transforaminal epidural steroid injection into the spinal canal for left L5 radiculopathy. AR338; dup. at AR361, 813.

         On January 14, 2014, Molly Schwab, PA at community health, saw Porter to follow up on her Viibryd and Dexilant, which Porter said were working very well. AR475. Clinical examination was unremarkable. AR475. The gastrointestinal examination showed her appetite was not decreased, and she had no nausea, vomiting, abdominal pain, diarrhea, or constipation. Id. PA Schwab assessed depression with anxiety, and esophageal reflux. AR476.

         On January 24, 2014, Porter reported to PA-C Palmer that she had been using the TENS and it helped significantly especially with night pain. AR812. She had been doing PT and had gotten good strength out of her knee. With the TENS unit she was able to control her symptoms. The Euflexxa injections seemed to help better this last series. Id. On exam, PA-C Palmer found tenderness at the distal insertion of the IT band on the lateral knee and markedly improved tenderness along the mid substance and proximal IT band. Id. PA-C Palmer assessed osteoarthritis of the left knee and IT band pain, improved. PA-C Palmer told Porter to continue the TENS and home exercises. She could repeat the Euflexxa series after May or June if pain recurred. Id.

         On January 31, 2014, Kevin Sobolik, physical therapist at ProMotion Physical Therapy, reported a comprehensive evaluation for Porter, who said she had insidious, progressive, L5-S1 HNP and radiculitis, with onset 8 years earlier. AR374. She reported intensification of radiation to the lower extremities, with exacerbations caused by lifting, walking too much, twisting, turning wrong, and sleeping wrong. She reported that she used a home TENS unit, ice, and relaxation. She reported that she had been to physical therapy “very often over the last 10 years” and found some relief from the exercise. Id.

         PT Sobolik reported that Porter stood with no apparent asymmetry; but supine, her left leg was 1 cm. longer. AR374. Extension caused low lumbar “pressure” pain. Bilateral side-bending caused ipsilateral “pressure.” Forward flexion with hands to knee increased hip radicular complaints, and with fingertips to floor she had complete radicular complaints in her left lower extremity. Id. He found positive left-lower-extremity neurotension symptoms at 60 degrees on the straight leg raise. Lumbar range of motion with side-bending was reduced by 50 percent. Id.

         She had 5/5 strength in her bilateral lower extremities, but reported weakness in the left lower extremity. AR375. Bilateral heel rise increased her posterior leg radicular complaints. On the biomechanical evaluation, the left SI joint appeared slightly reduced in mobility, both superior and inferior glide, which could be from myofascial guarding. Id. Most all other lumbar mobility testing was painful. Flexion of the lower segments increased Porter's radicular complaints, more so on the left. Sacroiliac testing for pain was negative. Id.

         PT Sobolik's impression was that flexion greater than extension exacerbated her discogenic[34] radicular symptoms. AR375. He instructed Porter in 5 exercises for stabilization and range of motion, and applied inversion traction. Porter reported “benefit from traction, but not after performance of this.” Id.

         PT Sobolik listed functional goals that included an “ODI score” of 25 or less and 75 percent reduction in her radicular complaints within an eight-week time frame. AR375. The foundation of care would be progression of core stabilization. Id. “We will incorporate primarily extension-based lumbar range of motion and lower extremity range of motion and neuromobility exercises.” Id. PT Sobolik listed modalities to introduce at the next session to address the sacroiliac joint. Id.

         He reported Porter's most recent disability index scores: Pain level 8, lumbar Oswestry score 52. AR375. Porter's “ODI” (Oswestry disability) assessment is at AR386-87. Porter reported pain levels of 8-9 over the past 24 hours, mild pain at the moment, said that washing and dressing increased her pain, said she could not lift or carry anything at all (“have to watch how I move and lift”), said that pain prevented walking long distances (AR386), that she could sit “as long as I like providing that I have my choice of seating surfaces, ” that pain prevented standing more than 10 minutes (in addition to other answers related to standing), [35] and that she slept only ¼ of her normal amount (AR387). Porter stated that pain prevented more energetic activities like sports and dancing, that traveling caused increased pain (“as long as I can have breaks I can travel but need to stretch…”), and said she could perform most homemaking duties but pain prevented physically stressful activities like lifting and vacuuming. AR387.

         On February 3, 2014, Porter sought ER care for cough and congestion. AR711. James Gilbert, MD, assessed bronchitis with reactive airway disease. AR712. He discharged her with Albuterol inhaler, Phenergan with Codeine, and Prednisone for 5 days, with Zithromax. AR711. He encouraged her not to smoke. Id.

         On February 4, 2014, Porter saw Crystal Walton, PA, at The Rehab Doctors. AR360, dup. at AR 380, 398. PA Walton recorded the patient's report of effects of epidural infusion: pain was 8/10 before the epidural infusion, 3/10 immediately after, 6/10 the next morning, and ranged from 4-6 through day eleven post-injection. Id. Currently Porter reported her pain level as 4/10.

         She said she was very pleased. She had seen a physical therapist at ProMotion for an evaluation and was no worse after. Id. PA Walton noted Porter had a diagnosis of left L5 radiculopathy, and low back pain significantly improved. PA Walton said that Porter would continue advancing her PT program as she was able to tolerate. AR360.

         PA Walton discussed the disability form that Porter had brought in for Dr. Anderson to complete, and said “the disability company could either order an IME with Dr. Anderson, an FCE with no guarantee that he could address all of the questions and that would require a follow-up visit as well, or he could fill out one of our work forms for the disability company.” AR360. PA Walton recorded “Dr. Anderson felt that it would be in her best interest to contact Myler Disability who sent her this form and ask them how she should proceed.” AR360.

         On February 19, 2014, Porter returned to DPT Pfeiffer at the Physical Therapy Center. AR433. DPT Pfeiffer stated that the patient had had PT, chiropractic, and injections with little to no relief. She was not a surgical candidate at this time so she was looking to therapy to try to offer some relief in pain and get her core as strong as possible. Id. Porter told DPT Pfeiffer that she could tolerate sitting 30 minutes or less, standing 15 minutes or less, and walking 20 minutes or less. Id.

         On PT examination, Porter had fair “TrA [Transverse Abdominis] and multifidi”[36] strength testing. She was unable to lift and was unable to perform her home exercise program (“HEP”) properly. She had positive compression, distraction, and Faber tests, negative tests for lumbar radiculopathy or herniated discs, and normal or slightly restricted lumbar movements. AR434. Upon palpation, she had tightness/trigger points in her lumbar paraspinals, glutes, and piriformis bilat. Lumbar spine movement was mostly normal and hip and knee strength were 5/5. Her pain rating was 8, and Oswestry score 58 (meaning, moderate activity causes significant pain). Id.

         She said she was unable to perform ADLs without moderate to severe pain in her back. AR435. DPT Pfeiffer assessed signs and symptoms consistent with SI dysfunction, her referral diagnosis. She demonstrated lack of dynamic core stability especially with higher-level activities, and this contributed to her symptoms. DPT Pfeiffer noted that trigger points throughout the lumbosacral region contributed to pain. Due to Porter's inability to get relief with previous PT intervention, her rehabilitation potential was low. Id. DPT Pfeiffer planned “alternative treatments this round including PRI corrective exercises.” Id. She planned to also include lumbar traction and extensive core stabilization in the therapy program. Id.

         On February 21, 2014, Porter had 50 minutes of physical therapy. AR438. On February 24, 2014, she had 63 minutes of therapy. AR441.

         On February 28, Kevin Sobolik reported a physical therapy evaluation. AR372, dup. at AR 391. The patient reported progressive lumbar spine pain for the last 8 years with intensification of radiation to lower extremities. She now had constant tingling in the left lateral extremity and bilateral foot numbness, with exacerbations caused by lifting, walking too much, twisting, turning wrong or sleeping wrong. Id. She reported the worst pain level as 10/10 and the best as 3/10. She had a home TENS unit, and ice and relaxation and more awareness would reduce exacerbations. She had been to physical therapy at the PT Center “very often over the last 10 years with some temporary relief.” Id.

         She had a history of left knee osteoarthritis and depression. She was on antidepressants and Nortriptyline. AR372.

         PT Sobolik described Porter's pain diagram: aching in her left knee; pins, needles, numbness in the left low lumbar region and bilateral lower extremities, to the left heel and right posterior knee. AR372. Porter had no apparent asymmetry while standing, but when supine, her left leg was 1 cm. longer. Extension caused low lumbar “pressure” pain. Bilateral side bending causes ipsilateral “pressure.” Id. Forward flexion with hands and knee increased hip radicular complaints. Fingertips to floor increased left lower extremity “complete” radicular complaints. Id. Porter had positive left-lower- extremity neurotension symptoms at 60 degrees in the straight leg raise. She had 50 percent of normal lumbar side-bending. Id.

         She had full strength in both lower extremities and subjective weakness in the left lower extremity. AR372. Bilateral heel rise induced an increase in posterior lower extremity radicular complaints. Id. PT Sobolik reported results of his biomechanical evaluation: the left SI joint appeared slightly reduced in mobility, both the superior and inferior glide, which could be myofascial guarding. Most all other lumbar mobility testing was painful. Id. Flexion of the lower segments increased radicular complaints, left greater than right. AR372-73. Sacroiliac testing for pain was negative. AR373. PT Sobolik stated the physical therapy impression: Flexion greater than extension exacerbating discogenic radicular complaints. Id. He instructed Porter in 5 exercises for stabilization and range of motion, and applied inversion traction. Porter reported benefit from traction. AR373.

         On March 11, 2014, Molly Schwab, PAC at community health, dispensed Viibryd 40 mg. AR475.

         On March 12, 2014, DPT Pfeiffer noted that Porter had missed physical therapy for 2 weeks due to her son having mononucleosis. She had 45 minutes of therapy on that date. AR444.

         On March 13, 2014, Porter saw Stephen Dick, MD, at the ER, for complaints of feeling weak, run down, persistent cough, and persistent problems breathing. AR704. Her lungs were clear, and she improved considerably after a duo nebulizer.[37] AR705. Dr. Dick “suspect[ed] her symptoms are related to the … reactive airway scenario with her bronchitis.” Id. Her chest x-ray was read as negative. AR708.

         On March 19, 2014, DPT Pfeiffer recorded that Porter had missed her Friday appointment because she was sick and vomiting. AR447. Porter had 45 minutes of therapy on this day, 45 minutes on March 26, 55 minutes on April 2, 45 minutes on April 4, 45 minutes on April 8, and 45 minutes on April 18, 2014. AR448-62.

         On March 29, 2014, a chest-x-ray was interpreted as showing no abnormalities. AR703.

         On April 9, 2014, PA Schwab dispensed Viibryd 40 mg. AR474.

         On April 18, Porter reported trying to do exercises on her own but said it was difficult to do them consistently. Her sitting tolerance continued to be 30 minutes or less, standing tolerance 15 minutes, and walking tolerance 20 minutes. AR462. DPT Pfeiffer again noted “fair TrA and multifidi strength testing. Unable to lift.” Id. Sacroiliac joint integrity tests - compression, distraction, and Patrick's Faber - were positive. DPT Pfeiffer observed tightness/trigger points of the lumbar paraspinals, glutes, and piriformis B and normal lumbar spine movements except for extension, which was slightly restricted. AR463. Porter had full strength of hips, knees and ankles, and negative tests for lumbar radiculopathy or herniated discs. Id.

         On April 19, 2014, Porter sought ER care for respiratory complaints. She was noted to be a smoker. AR693. She had a barky cough and said, “I have been trying to quit smoking and now my coughing is worse.” AR695. The impression was acute bronchitis and tobacco abuse. AR694. She was treated with an Albuterol inhaler, Tessalon Perles, [38] and a Z-Pak.[39] AR693. She had a full range of motion in all extremities, no gross weakness or edema, and normal mood, affect, memory, judgment, grooming and hygiene. AR693, 695.

         On April 22, 2014, Porter saw CNP Grimsrud for her depression. AR473. Her medications were Vicodin, Ibuprofen, Dexilant, Bupropion, Nortriptyline, and Viibryd. Id. CNP Grimsrud said that Porter had previously seen Molly Schwab, PA, for depression and GERD. The patient denied concerns about her current medication. She said she was being treated for upper respiratory infection with a Z-pak and Tessalon Perles and was not feeling better. She complained of chest tightness and wheezing. AR473. Clinical exam, including psychiatric exam, was negative except for tight, diffuse wheezes throughout the lungs. AR473-74. CNP Grimsrud ordered a nebulizer treatment. AR474. She added Prednisone and Advair Diskus[40] to the medication regimen. Id.

         On May 13, 2014, Porter saw Karron Zopp at community health for sore throat cough, and tenderness under the neck and pain when swallowing. AR560. Porter still smoked every day. Id.

         On May 27, 2014, DPT Pfeiffer wrote a physical therapy discharge summary. AR508. She stated that Porter had been doing her HEP regularly, and reported no change in leg or back symptoms. Id. Objectively she had “fair” strength testing of the TrA and multifidi. She was able to perform her HEP properly. Id.

         The physical therapy examination was normal except for slightly restricted lumbar extension. AR509. The patient had been seen for 11 sessions and had been unable to demonstrate any significant changes in subjective levels of pain or function. She was compliant with her home strength and stability program. Id.

         On May 29, 2014, Porter saw CNP Grimsrud for her depression. She was on Bupropion and Viibryd and did not think they were helping. AR470, dup. AR559. She endorsed high irritability, emotional lability, and depression. AR471. On examination, she was well groomed, her speech was organized and articulate, she had appropriate eye contact and effect, and expressed no abnormalities in thought content, perception or process. Id. CNP Grimsrud assessed allergic rhinitis, depressive disorder NEC, and esophageal reflux. She initiated Abilify 2 mg a day, and said Porter would be seen in 3 months or sooner if needed. Id.

         Her laboratory report on this date showed elevated thyroid stimulating hormone and low Vitamin D, low hemoglobin, mean corpuscular volume, mean corpuscular Hgb, and mean corpuscular Hgb concentration, with elevated red cell distribution width. AR478. Her calcium level and albumin were low, and alkaline phosphatase was elevated. AR479.

         On June 2, 2014, Porter saw Dr. Daniel Hofmann at the ER for back and leg pain. AR922. She reported she had a history of chronic back pain treated with injections, and had a TENS unit. She reported she had been diagnosed with neuropathy in her feet of unknown cause and had been tried on Gabapentin without relief. She had had 3 days of exacerbation of her back pain and parasthesias in her feet. Id. She had a negative exam. AR922-23. Dr. Hofmann treated her with Toradol IM and a prescription of Tramadol. AR923. His clinical impression was exacerbation of chronic low back pain and exacerbation of neuropathy of the feet. Id.

         On June 8, 2014, Porter saw Patrick Tibbles, MD, at the ER, for several days of worsening cough, and other upper respiratory symptoms. AR915. She was said to be an ongoing smoker, “6 cigs packs per day.” Her O2 saturation was 97%. She was using asthma medications without relief. Her cough was severe and she was unable to sleep. Id. On physical exam she had very mild pharyngeal erythema and bilateral rhonchi and wheezing. Id. Chest x-ray was normal. AR916, 921. She was given a Combivent[41] inhaler and was admonished to stop smoking. Dr. Tibble's impression was acute bronchitis, acute bronchospasm, asthma exacerbation, and ongoing tobacco dependence. AR916. The remainder of her physical and psychological examinations were unremarkable. AR915.

         On June 14, Porter sought ER treatment for back pain and coughing. AR911. She stated that she had just run out of her Tramadol and Lyrica. AR911-12. She smoked a half-pack a day. AR911. On physical examination, she had decreased breath sounds bilaterally, her back was non-tender, her extremities had no gross weakness or edema, and she had normal mood, affect, judgment, and memory. AR911-12. She was discharged home with Lyrica and Tramadol. AR912.

         On June 16, 2014, Porter saw CNP Zopp at community health, for cough, body aches, and fatigue. AR558. She reported going to the ER 2 weeks earlier. She was placed on a Z-Pak but said she had been coughing non-stop and that she had bad body aches and chills. Id. CNP Zopp noted her current medications: Ibuprofen, Nortriptyline, Levothyroxine, [42] Abilify, Vitamin D2 50, 000 units twice a week for 8 weeks, Viibryd, Dexilant, Bupropion, Advair Diskus, and Combivent. Id. The patient was a “light” tobacco smoker. She did have a mild fever. Auscultation revealed fine crackles anteriorly and diminished breath sounds in the bases bilaterally. Id. CNP Zopp assessed cough, fever, and simple chronic bronchitis. AR559. She planned a chest x-ray or other imaging of the chest, Prednisone 40 mg. a day for 5 days, and Tessalon Perles. Id.

         On June 18, 2014, Porter saw CNP Grimsrud at community health for left hip and left pain, which she had had for 5 days. AR557. She complained of pain with standing and with movement of the hip. She was on Lyrica, [43]Tramadol, and Ibuprofen through Pain Management and saw the “Rehab MDs” for injections. Id. The musculoskeletal examination was unremarkable with some subjective pain on motion of the left hip, and a normal range of motion of all extremity joints. Id. CNP Grimsrud assessed hip joint pain. Id. She prescribed Meloxicam and instructed Porter to not take Ibuprofen/Aleve while on this medication. AR558.

         On June 30, 2014, Porter saw PA-C Kayla Czmowski at community health for possible bronchitis. AR555. After her 5-day Prednisone burst, most of her symptoms had resolved. Id. PA-C Czmowski assessed “simple chronic bronchitis, ” prescribed Tessalon and told Porter to increase fluids, rest and “QUIT SMOKING!” AR556.

         On June 30, 2014, PA Walton reported that Porter was last seen at The Rehab Doctors on February 4, 2014. AR488. PA Walton noted Porter had a left L5-S1 transforaminal epidural steroid injection in January 2014, did very well, went to approximately 8 physical therapy treatments, and did not really note additional improvement. Id. Recently her pain came back and “is exactly the same as it was before.” PA Walton reported her examination: the patient had some discomfort with left hip maneuvers. Compression of the SI joint was somewhat painful. Faber was restricted. SLR was very positive. Id. PA Walton assessed left L5 radiculopathy, and a hip and SI component. She planned to schedule another epidural. If Porter continued to have SI or hip maneuvers [sic], that problem would be addressed later. Id. PA Walton agreed to call in a refill of Lyrica. Id.

         On July 7, 2014, Porter underwent a left L5-S1 transforaminal epidural steroid injection, administered by Dr. Anderson. AR523.

         On July 9, 2014, Porter saw Ashley Rook, PAC at community health, for her continued bronchitis. AR553. She reported that she coughed so hard she got light-headed. She was still using three inhalers and Tessalon. She also had a headache. Id. She reported she was making an effort to cut back and hopefully quit smoking, but she was still an everyday smoker. AR554. She was on Prednisone 40 mg. a day for 5 days. Id. Her oxygen saturation was 97 percent. Id. Auscultation revealed mild expiratory wheezes in upper and lower lung fields, normal respiration, and no accessory muscle use. Her psychometric depression scale was negative. Id. The assessment was “simple chronic bronchitis.” Id. PA Rook renewed the prescription for Prednisone 40 mg for 5 days. AR555. She continued Tessalon and inhalers. PA Rook encouraged continued efforts to quit smoking. Id.

         On July 14, 2014, Porter saw Clay Smith, MD, at the ER, for severe back pain involving both the lumbar and thoracic spine after vacuuming and shampooing carpet earlier that day. AR906. Porter continued to smoke ½ pack of cigarettes daily. Id. Dr. Smith ordered Toradol and prescribed a short course of Tramadol. AR907. His clinical impression was lumbar and thoracic back pain and atraumatic back pain. Id. The physical examination demonstrated no extremity edema or gross weakness, no CVA or midline back tenderness, and normal mood, affect, memory and judgment. Id.

         On July 22, 2014, the laboratory reported low hemoglobin and hematocrit, mean corpuscular volume, mean corpuscular Hgb, and mean corpuscular Hgb concentration, with elevated red cell distribution width. AR568.

         On July 22, 2014, Porter sought ER treatment for shortness of breath. AR902. Chest x-ray was normal. Id. AR 905. Her lungs were clear, pulmonary vascularity was within normal limits, and pleural spaces were unremarkable with no evidence of pneumothorax or effusion. AR902.

         On July 26, 2014, Porter sought ER treatment for persistent cough, wheezing, and shortness of breath. AR894. She had been camping for several days and was exposed to smoke. She had been using her inhaler and nebulizers without relief. Id. On exam, she did not have respiratory distress or wheezing. Id. Chest x-ray was normal. AR895, 899. She had unremarkable extremity and psychological examinations. Id. She was given a Combivent inhaler, Prednisone, and Azithromycin.[44] AR895. Dr. Tibbles' clinical impression was acute dyspnea, asthma exacerbation, acute bronchitis and longstanding tobacco dependence. Id.

         On July 28, 2014, PA Walton of The Rehab Doctors reported the L5-S1 transforaminal epidural steroid injection on July 7 helped Porter's back pain and somewhat helped her leg pain but did nothing for hip and groin pain. AR487. Pain levels had fluctuated from 6-9 out of ten since the injection to that appointment. She reported that she had seen an orthopedist who told her she had bone-on-bone knee arthritis and would likely require a knee replacement. Id. Porter had very positive hip maneuvers on the left and a non-painful knee exam. Id. PA Walton assessed left hip degenerative joint disease, left L5 radiculopathy, and low back pain improved. She scheduled a left hip joint x-ray. Id.

         Porter's second medical visit on July 28 was to CNP Grimsrud for upper respiratory symptoms. AR552. She had received 3 5-day steroid bursts since mid-May and a Z-Pak, plus numerous inhalers and OTC medications. She continued to smoke daily. She complained of feeling tired or poorly. Id. CNP Grimsrud assessed “obstructive chronic bronchitis with acute bronchitis. AR553. She counseled Porter on cessation of tobacco. Id. CNP Grimsrud discussed the case with Dr. Blower and he recommended no further antibiotics or steroids, but rather a CBC.[45] Id. CNP Grimsrud wrote, “Due to a medical condition the patient requires 2-3 liters of oxygen at night … and also during daytime naps.” AR575.

         On July 28, 2014, Porter's third medical visit was to the ER where she saw Dr. Neilson. AR900-01. She complained of shortness of breath and increasing chest tightness. AR900. She was a current daily smoker with “no prior history of asthma or COPD though it is thought at this point she has some variation of an obstructive pulmonary disease.” Id. Physical exam revealed diffuse biphasic wheezing but no respiratory distress. AR900-01. She was given a nebulizer treatment with significant improvement, though she still had diffuse rhonchi. AR901. She was given a second nebulizer treatment and felt significantly better. Clinical impression was bronchospasm and cough. Id. She had unremarkable extremity and psychological examinations. Id.

         On July 29, 2014, Porter saw Grimsrud for medication follow-up. AR551. She reported being a “former smoker.” She reported having a cough and bronchitis for several weeks, had been on two courses of Azithromycin, currently was on Prednisone and Zyrtec, [46] and said she was not feeling better. The clinical physical and psychiatric examinations were unremarkable. AR551-52. CNP Grimsrud ordered laboratory studies. AR552. The laboratory reported elevated TSH and vitamin D. AR568.

         On August 11, 2014, David Griffith, MD, interpreted an MRI of the left hip. AR521-22. He found mild insertional gluteus medius tendinitis but no evidence of macrotear affecting the hip; he found a left adnexal cyst that was likely ovarian. AR522. There were no signs of entrapment neuropathy in the sciatic nerve region, no perisciatic irritation or scarring, take off of the hamstring complex was unremarkable, and there was no muscle atrophy or denervation. AR521.

         On August 19, 2014, Porter saw PA Walton, who reported (cc: Jonathan Wilson, MD) that Porter had been seen a week earlier for continued hip joint pain. Her x-rays had been fairly unremarkable but an MRI indicated mild insertional gluteus medius tendonitis, and a left adnexal cyst. Symptoms of left gluteal and left groin pain were unchanged. PA Walton planned referrals to physical therapy and gynecology. AR486.

         On August 22, 2014, Porter sought ER treatment for headache. AR889. She reported a history of migraines and said she had a couple a month for over a decade. The headache was behind her right eye. She was unable to tolerate bright lights. Id. She was treated with Morphine and Phenergan IM. AR890. Dr. Hill's clinical impression was acute cephalgia, and history of migraines. Id.

         On August 27, 2014, Porter saw CNP Grimsrud for headaches. AR549-50. She was said to be a former smoker. AR550. She stated that she used to get frequent migraines but had not had one in years. She said that she had had this continuous headache for two weeks. She said it was a migraine at one point and she sought ER care, and was given morphine. Id. Porter said The Rehab MD recently took her off Nortriptyline and that coincided with the start of headaches. Id. Physical and psychiatric exams were unremarkable except for headache and diminished breath sounds with scattered wheezes. Id. CNP Grimsrud prescribed Amitriptyline[47] 25 mg. at bedtime. AR551.

         On September 3, 2014, Dr. Pfeiffer reported a physical therapy evaluation. AR505. The patient complained of left hip pain and had a history of chronic pain including her low back, buttock and knee pain. She stated she had tried injections, PT, massage, and rest, with minimal improvements in pain levels. She reported significant stiffness and lateral hip pain that limited her standing and walking. Crystal Walton, PA, had diagnosed gluteus medius tendinitis and referred her. Id.

         Subjectively, the patient ascended and descended stairs with pain and difficulty, could walk <10 min, tolerate sitting for 30 minutes and stand 5-10 min or less without aggravating pain. She reported quite a bit of difficulty performing usual housework activities. Id. She had positive Ober's test[48], positive piriformis, SLS[49] 10 sec on R, and was unable to stand on L. AR506. The Faber test and Trendelenburg's[50] were positive, and hip scour[51] was positive. Hip strength ranged from 4- to 5-. Id.

         Goals to be achieved by October 15, 2014, were to be able to walk without significant pain for 15-20 minutes, stand 15 minutes, report 30% improvement in performing daily housework activities, and be independent with a finalized HEP. Id. DPT Pfeiffer stated that Porter presented with signs and symptoms consistent with the referring diagnosis. DPT Pfeiffer stated that Porter had significant tightness throughout the posterior and lateral hip musculature, poor motor control, and stability of hips and core. AR506. This was limiting her ability to stand, walk, and perform her regular ADLs. Rehab potential was fair. Id. She would be seen twice a week for 6 weeks. AR507.

         On September 8, 2014, Porter had 45 minutes of physical therapy and positive findings on the usual tests. (Ober's, Faber, piriformis, Trendelenburg, SLS, hip scour, and strength testing of the hip). AR503. She had high irritability with lateral leg mobilization. AR504.

         On September 10, 2014, Porter had 45 minutes of physical therapy and commented, “Weather change makes my knee sore.” She noted subjective reports that climbing stairs was painful and difficult and that the patient could tolerate sitting for 30 minutes. Id. Dr. Pfeiffer reported positive Ober's, piriformis, Trendelenburg's and hip scour, “SLR 10 sec on R. Unable to stand on L.” AR502. She reported hip strength ranging from 4- to 5-. AR502. DPT Pfeiffer assessed slight improvement in tolerance to mobilization. Id.

         On September 15, 2014, DPT Pfeiffer reported limitations and positive tests as before. She provided 45 minutes of physical therapy. AR499-500.

         On September 17, 2014, DPT Pfeiffer stated that Porter continued to report IT band pain. AR497. She reported limitations and positive tests as before. AR497-98.

         On September 24, 2014, PA-C Palmer reported a follow-up visit at Black Hills. AR810. Regarding her left knee, Porter reported pain across her lateral hip down to lateral knee. The Euflexxa series did not seem to affect her knee pain, which had never been in the joint but was more superior and lateral to the knee and radiated upward along the IT band over the greater trochanter in to the lumbar spine region. Id. Sometimes she got radiating pain down the right leg but it was more significant on the left. Epidural injections to her back did not affect the pain; physical therapy had not really helped. Id. She experienced numbness at times clear down to her foot. Id.

         On exam, PA-C Palmer noted mildly positive SLR, tenderness all along the IT band down to the distal insertion on the lateral femoral condyle up over the greater trochanter into the sciatic notch and SI joint. AR810. He noted tenderness from about L-2-3, L4-5, and L5-S1. PA-C Palmer reviewed the December 2013 lumbar MRI and said it showed disc herniation with migration of a loose piece into the lateral foramen that was impinging on the exiting L4-5 nerve root. “Certainly this could be reproducing her discomfort.” PA-C Palmer assessed low back pain, laterally displaced disc herniation at L4-5; early degenerative arthritis of the left knee, unresponsive to Euflexxa. He stated that Porter had “known disc herniation with foraminal impingement at L4-5 one year ago[, ] not responsive to conservative care. Id. PA-C Palmer told Porter that he believed the leg pain was radicular and that a lumbar MRI should be repeated to re-image the lateral disc herniation at L4-5. AR811. He wanted her to see Robert Woodruff, MD, orthopedic surgeon at Black Hills Orthopedic & Spine Center, [52] to get his opinion about a possible lumbar microdiscectomy. Id.

         On September 26, 2014, Stephen Pomeranz, MD, interpreted a lumbar MRI. AR519-20, dup. at AR887, et seq. He reported a shallow disc bulge at L5-S1 associated with facet arthropathy, mild left foraminal ...

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