Porter v. Berryhill

Filing 26

MEMORANDUM OPINION AND ORDER granting 18 Motion to Reverse and remanding case for further proceedings. Signed by US Magistrate Judge Veronica L. Duffy on 5/9/2018. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KIMBERLY L. PORTER,

5:17-CV-05028-VLD

Plaintiff,
vs.

MEMORANDUM OPINION
AND ORDER

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.
B.
C.
D.
E.
F.
G.
H.

Procedural History ............................................................................... 2
Background ......................................................................................... 3
Vocational Evidence............................................................................. 4
Medical Evidence – Chronological ........................................................ 4
Claimant and Lay Witness Statements ............................................... 69
Opinion Evidence .............................................................................. 76
ALJ’s Decision ................................................................................... 78
Issues Before This Court .................................................................... 79

DISCUSSION ................................................................................................ 80
A.
B.

Standard of Review. ........................................................................... 80
The Disability Determination and the Five-Step Procedure. ................ 82

Nancy Berryhill is no longer the Acting Commissioner of Social Security. The
revised title is necessary until the President appoints another executive to serve
as Acting Commissioner, or there is a nominee for the position of
Commissioner of Social Security, at which time the Federal Vacancies Reform
Act of 1998, 5 U.S.C. § 3346(a)(2), would allow Nancy Berryhill to resume the
position of Acting Commissioner of Social Security while the nomination is
pending.
1

i

C.
D.

Burden of Proof. ................................................................................ 83
Did the ALJ Err in Determining the Alleged Disability Onset Date? .... 84

1.
2.

Why Does the Disability Onset Date Matter? ................................... 84
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.
2.
3.
4.
5.
F.

Applicable Law and ALJ Findings.................................................... 96
Mental Impairment ......................................................................... 98
Left Knee ...................................................................................... 109
Sacroiliitis .................................................................................... 113
Myofascial Pain Syndrome ............................................................ 115

Did the ALJ Fail to Develop the Record as to Pulmonary and
Psychological Impairments? ............................................................... 117
1.
2.
3.

G.
1.
2.

Duty to Obtain 12 Months’ of Pre-Application Records .................. 118
Consultative Examination on Mental Impairments ........................ 119
Consultative Examination on COPD .............................................. 125
Was the ALJ’s RFC Assessment Supported by Substantial Evidence? .... 133

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

ii

INTRODUCTION
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

Plaintiff’s first name was spelled “Kimberley” in the complaint. The caption is
changed herein to reflect the correct spelling is “Kimberly.”
2

Title II benefits are sometimes called SSD or DIB benefits. A claimant’s
entitlement to Title II benefits, unlike Title XVI (aka SSI) benefits, is dependent
upon one’s “coverage” status (calculated according to one’s earning history—
Ms. Porter was insured through December 31, 2016), and the amount of
benefits are likewise calculated according to a formula using the claimant’s
earning history. Both types of benefits are dependent upon the claimant being
disabled and the definition of disability is the same under both Titles. There
are corresponding and usually identical regulations for each type of benefit.
See, e.g. 20 C.F.R. § 404.1520 and § 416.920 (evaluation of disability using the
five-step procedure under Title II and Title XVI). For simplicity’s sake, the
court will cite herein to only one group of regulations unless there is a
difference between the two.
3

1

discussed in further detail below, the court reverses and remands for further
consideration.
FACTS4
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.

The following statement of facts is taken from the parties’ joint stipulated
statement of facts. See Docket No. 15. The court has made minor modifications
such as grammar, punctuation, and incorporating the defined terms from the
parties’ glossary into footnotes at the appropriate place in the text. There was
a separate statement of one disputed medical record. See Docket No. 15-1.
The court has incorporated that statement chronologically with the rest of the
facts, but indicated it is disputed.
4

2

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.

The parties disagree these facts are relevant but admit they appear in the
record at AR546.
5

The parties disagree these facts are relevant but admit they appear in the
record at AR545.
6

3

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 C5C6. AR776-77. End disputed statement of fact.

4

On March 14, 2013, Porter saw Jennifer Thielen, PA7 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

https://www.doximity.com/pub/jennifer-theilen-pa. Last checked May 4,
2018.
7

Iliotibial band syndrome is a common injury to the knee generally associated
with running, cycling, etc. Your IT band is a thick bunch of fibers that runs
from the outside of your hips to the outside of your thigh and knee down to the
top of your shinbone. https://www.webmd.com/pain-management/it-bandsyndrome#1, accessed May 4, 2018.
8

http://www.vitals.com/doctors/Dr_Christina_Cote.html, accessed May 4,
2018.
9

5

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 Dexilant10 for reflux, and Chantix11 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, welldeveloped, 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

Dexilant (Lansoprazole) is a proton pump inhibitor used to treat GERD.
https://medlineplus.gov/druginfo/meds/a695020.html, accessed May 4,
2018.
10

Chantix (Varenicline) is a smoking cessation aid that blocks the pleasant
effects of nicotine on the brain.
https://medlineplus.gov/druginfo/meds/a606024.html, accessed May 4,
2018.
11

6

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 Prozac13
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.

Euflexxa is an injectable medication used to relieve knee pain due to
osteoarthritis. http://www.euflexxa.com/, accessed May 4, 2018.
12

Prozac (Fluoxetine) is an SSRI that increases the brain’s serotonin, used to
treat depression, obsessive-compulsive disorder, and panic attacks.
https://medlineplus.gov/druginfo/meds/a689006.html, accessed May 4,
2018.
13

7

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. AR563564.
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 Zyban14 [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.

14

Zyban (see Wellbutrin, footnote 17, infra).

Abilify (Aripiprazole) is an atypical antipsychotic used to treat symptoms of
schizophrenia. It is also used with an antidepressant to treat depression when
symptoms cannot be controlled by the antidepressant alone.
https://medlineplus.gov/druginfo/meds/a603012.html, accessed May 4,
2018.
15

8

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 Viibryd16 and told Porter to continue Zyban.

Viibryd (Vilazodone) is a selective serotonin reuptake inhibitor (SSRI) and a
5HT1A partial agonist, used to treat depression.
16

9

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
Wellbutrin17 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 Cymbalta18 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.

https://medlineplus.gov/druginfo/meds/a611020.html, accessed May 4,
2018.
Wellbutrin (Bupropion, Zyban) is an antidepressant used to treat depression,
SAD, and to help people stop smoking.
https://medlineplus.gov/druginfo/meds/a695033.html, accessed May 4,
2018.
17

Cymbalta (Duloxetine) is a selective serotonin and norepinephrine reuptake
inhibitor (SNRI) used to treat depression and generalized anxiety disorder
(GAD). https://medlineplus.gov/druginfo/meds/a604030.html, accessed May
4, 2018.
18

10

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

Ibuprofen is an NSAID used to relieve the pain, tenderness and swelling of
osteoarthritis. Nonprescription Ibuprofen is used to reduce fever and relieve
minor aches and pain from headaches, muscle aches, etc.
https://medlineplus.gov/druginfo/meds/a682159.html, accessed May 4,
2018.
19

11

Nortriptyline,20 Pennsaid21 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

Nortriptyline is a tricyclic antidepressant used to treat depression.
https://medlineplus.gov/druginfo/meds/a682620.html, accessed May 4,
2018.
20

Pennsaid (Diclofenac, Volaren) is an NSAID for relief of osteoarthritis pain in
the knees. https://medlineplus.gov/druginfo/meds/a611002.html, accessed
May 4, 2018.
21

12

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-legraising 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
13

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 L5-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 Vicodin22 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

Vicodin (Hydrocodone/Acetaminophen) is an opiate used to relieve moderate
to moderately severe pain.
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010590/, accessed May
4, 2018.
22

14

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.

15

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 tests23 were negative. Porter
had zero degrees of knee extension, 94 degrees of left knee flexion, 4/5 left
knee extension strength, and 4+/5 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
Anterior drawer and Lachman tests: Tests for detecting ACL tear.
Arc Bone Jt Surg. 2013 Dec; 1(2): 94-97. “Accuracy of Lachman and Anterior
Drawer Tests for Anterior Cruciate Ligament Injuries”
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4151408/, accessed May 4,
2018.
23

16

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 12 and 14, 2013, Porter had 70-minute physical therapy
sessions. AR425, 427.
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
17

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
18

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.

19

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’s24
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.

In medicine, Fowler’s position is a standard patient position where the
patient reclines on an exam bed and the head of the bed is elevated. It is an
intervention used to promote oxygenation via maximum chest expansion and is
implemented during events of respiratory distress. Fowler’s position facilitates
the relaxing of tension of the abdominal muscles, allowing for improved
breathing. Semi-Fowler’s features the head of the bed raised to 30-45 degrees.
https://en.wikipedia.org/wiki/Fowler%27s_position, accessed May 4, 2018.
24

20

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.
21

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.

Meloxicam is an NSAID used to relieve pain, tenderness, swelling and
stiffness caused by osteoarthritis.
https://medlineplus.gov/druginfo/meds/a601242.html, accessed May 4,
2018.
25

Celebrex (Celecoxib) is an NSAID.
https://medlineplus.gov/druginfo/meds/a699022.html, accessed May 4,
2018.
26

Tramadol (Ultram) is an opiate used to relieve moderately to moderately
severe pain. https://medlineplus.gov/druginfo/meds/a695011.html, accessed
May 4, 2018.
27

Hydrocodone is an opiate available in combination with other ingredients,
which are used to relieve moderate to severe pain.
https://medlineplus.gov/druginfo/meds/a601006.html, accessed May 4,
2018.
28

Gabapentin is an anticonvulsant used to relieve the pain of post-herpetic
neuralgia and restless leg syndrome.
https://medlineplus.gov/druginfo/meds/a694007.html, accessed May 4,
2018.
29

22

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 test31 provoked on the left greater than right. The Faber32 test
provoked groin pain. Id. Straight-leg-raising at 45 degrees caused bilateral
calf pain. Prone extension and reverse straight-leg-raise33 did not change her

“Up-slip” refers to the posterior iliac subluxation, which occurs on the left
side. An on-line athletic medicine article discusses pelvis upslip that results in
“a cascade of altered arthrokinematics, changes length tension relationships,
and reworks normal neurological feedback loop.”
http://stoneathleticmedicine.com/2014/05/pelvic-upslip-and-rotationevaluation-and-treatment, last checked May 4, 2018.
30

The piriformis test is used to screen for piriformis muscle and to detect
tightness or other discomforts of the sciatic nerve as it passes through or under
the piriformis muscle. https://www.physio-pedia.com/Piriformis_Test,
accessed May 4, 2018.
31

FABER (Patrick’s) stands for Flexion, Abduction and External Rotation. The
FABER test is a passive screening tool for musculoskeletal pathologies in the
middle region of the human body, like hip, lumbar, or SI joint dysfunction, or
an iliopsoas spasm. https://www.physio-pedia.com/FABER_Test, accessed
May 4, 2018.
32

Straight-leg-raise (SLR) is a neurodynamic test. Neurodynamic tests check
the mechanical movement of the neurological tissues as well as their sensitivity
to mechanical stress or compression. SLR is a neural tension test that can be
33

23

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
used to rule in or out neural tissue involvement as a result of a space
occupying lesion, often a lumbar disc herniation. https://www.physiopedia.com/Straight_Leg_Raise_Test, accessed May 4, 2018.
24

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
25

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 discogenic34 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 AR 386-87. Porter reported pain levels of 8-9 over the past 24

Discogenic back pain: Pain that originates in the disc, as opposed to nerve
root compression. Stem Cells Int. 2016; 2016: 3908389. Zeckser, Wolff,
Tucker, and Goodwin. “Multipotent Mesenchymal Stem Cell Treatment for
Discogenic Low Back Pain and Disc Degeneration.” Accessed May 4, 2018.
34

26

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 AR380, 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.

Responses to the ability-to-stand questions were ambiguous because Porter
checked all responses except the first and last. AR387.
35

27

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.

28

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.

The multifidus is a deep muscle located along the back of the spine close to
midline. The multifidus functions with the transverse abdominis and pelvic
floor muscles to stabilize the low back and pelvis; these must activate before
movement of arms/legs. If the muscle contraction delay or absence is not
corrected, it increases the incidence of reinjury. http://dianelee.ca/articletraining-deep-core-muscles.php#mutifidus. Last checked May 4, 2018.
36

29

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 AR391. 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-

30

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

31

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

Nebulizer: In medicine, a nebulizer is a drug delivery device used to
administer medication in the form of a mist inhaled into the lungs. Nebulizers
are commonly used for the treatment of cystic fibrosis, asthma, COPD, and
other respiratory diseases or disorders.
https://en.wikipedia.org/wiki/Nebulizer, accessed May 4, 2018.
37

32

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 Diskus40 to the medication regimen. Id.

Tessalon Perles (Benzonatate) is a non-narcotic cough medicine.
https://www.drugs.com/mtm/tessalon-perles.html, accessed May 4, 2018.
38

39

Z-Pak (see Azithromycin).

Advair Diskus is a combination of fluticasone and salmeterol and is used to
prevent wheezing, shortness of breath, coughing and chest tightness caused by
40

33

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

asthma and chronic obstructive pulmonary disease. Side-effects include runny
nose, sneezing, throat irritation, sinus pain, headache, nausea, vomiting,
diarrhea, choking or difficulty swallowing, and multiple other side-effects.
https://medlineplus.gov/druginto/meds/a699063.html, accessed May 4,
2018.
34

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
35

normal. AR916, 921. She was given a Combivent41 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
Combivent is a bronchodilator, a combination of albuterol and ipratropium
used to prevent wheezing, difficulty breathing, chest tightness, and coughing in
people with chronic obstructive pulmonary disease (COPD).
https://medlineplus.gov/druginfo/meds/a601063.html, accessed May 4,
2018.
41

Levothyroxine (Synthroid) is a thyroid hormone used to treat
hypothyroidism. https://medlineplus.gov/druginfo/meds/a682461.html,
accessed May 4, 2018.
42

36

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 xray 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.

Lyrica (Pregabalin) is an anticonvulsant used to relieve neuropathic pain.
https://medlineplus.gov/druginfo/meds/a605045.html, accessed May 4,
2018.
43

37

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
38

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
39

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 nonpainful 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.

Azithromycin (Zithromax, Z-Pak) is a macrolide antibiotic used to treat
certain bacterial infections.
https://medlineplus.gov/druginfo/meds/a697037.html, accessed May 4,
2018.
44

40

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.

45

The court infers CBC to refer to a complete blood count.

Zyrtec (Ceterizine) is an antihistamine used to temporarily relieve symptoms
of hay fever or hives. https://medlineplus.gov/druginfo/meds/a698026.html,
accessed May 4, 2018.
46

41

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. AR54950. She was said to be a former smoker. AR550. She stated that she used to
42

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 Amitriptyline47 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 test48,

Amitriptyline (Elavil) is a tricyclic antidepressant used to treat symptoms of
depression. It is also used to treat post-herpetic neuralgia and to prevent
migraine headaches. https://medlineplus.gov/druginfo/meds/a682388.html,
accessed May 4, 2018.
47

Ober’s test is used in physical examination to identify tightness of the
iliotibial band (iliotibial band syndrome).
https://en.wikipedia.org./wiki/Ober%27s_test, accessed May 4, 2018.
48

43

positive piriformis, SLS49 10 sec on R, and was unable to stand on L. AR506.
The Faber test and Trendelenburg’s50 were positive, and hip scour51 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.

SLS, i.e., single-leg stance. Performed with eyes open and arms on the hips
the participant must stand unassisted on one leg and is timed in seconds from
the time one foot is flexed off the floor to the time when it touches the ground
or the standing leg or an arm leaves the hips.
49

Trendelenburg test. A physical examination finding associated with various
slip abnormalities (those associated with abduction muscle weakness or hip
pain or congenital hip dislocation, hip rheumatic arthritis, osteoarthritis) in
which the pelvis sags on the side opposite the affected side during single leg
stance on the affected side during gait, compensation occurs by leaning the
torso toward the involved side during stance phase on the affected extremity.
https://www.physio-pedia.com/Trendelenburg_Test, accessed May 4, 2018.
50

Hip scour test is a test for hip labrum, capsulitis, osteochondral defects,
acetabular defects, osteoarthritis, avascular necrosis, and femoral acetabular
impingement syndrome. https://www.pthaven.com/page/show/162468scour-test, accessed May 4, 2018.
51

44

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
45

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

https://www.bhosc.com/experts/robert-woodruff-md, accessed May 4,
2018.
52

46

L5-S1 associated with facet arthropathy, mild left foraminal narrowing, and
abutment of the exiting left L5 nerve root. AR519.
On September 26, 2014, Porter underwent a sacroiliac joint injection at
Black Hills Surgery Center. AR526.
On September 29, 2014, Porter had 45 minutes of physical therapy.
AR495. Porter reported that her sleep was improved with medication. Id. She
ascended and descended stairs with pain and difficulty. She could tolerate
sitting for 30 minutes. Id. Dr. Pfeiffer listed positive findings. AR496. Porter
had a positive Ober’s test, positive piriformis, SLS 10 seconds on the right and
unable to stand on the left. Id. Faber, Trendelenburg’s, and hip scour tests
were positive. Strength testing of the hip ranged from 4- to 5. Id.
On September 29, 2014, Porter called community health and talked to
PA-C Czmowski about “significant bilateral lower extremity swelling over the
past week.” AR548. PA-C Czmowski advised her to elevate her legs and call in
the morning. Id. On September 30, 2014, Porter sought ER treatment for
complaints of lower back pain, leg and foot pain. AR883. She had been unable
to get into her PCP and was scheduled to see Dr. Woodruff. Id. A limited
physical examination was unremarkable. Id. The ER physician, Dr. Miller,
reviewed the prescription drug usage through a state monitoring program and
doubted this was a duplicitous attempt to get narcotics. AR884. He prescribed
Norco and a muscle relaxant to get her through the days until her appointment
with Dr. Woodruff. His impression was exacerbation of chronic back pain, and
radiculopathy. Id.
47

On October 2, 2014, Porter saw Robert Woodruff, MD, at Black Hills
Orthopedic & Spine Center, for an initial evaluation, upon the referral of
PA-C Dan Palmer. AR808. Porter reported relevant history: pain for the last 8
years in the back and buttock, into her hip, and occasionally down the left
posterior thigh. On average her pain level was 4/10, and at worst it was
10/10. “It’s numbness tingling stabbing and burning achiness and pins and
needles in quality.” Id. Dr. Woodruff recorded, “It’s worse [when] she bends
twist lifts stands and does housework better when she takes breaks.” She was
in physical therapy less than a year ago. She had tried heat, ice, Hydrocodone,
Flexeril, Meloxicam, and Ibuprofen. She had had 3 epidural injections that
helped for 2-3 hours. Id. Porter told Dr. Woodruff that she quit smoking about
2 weeks ago and was using a vapor cigarette. She had weight gain from
inactivity and weighed 176. Id.
On exam she had tenderness to palpation of spinous processes L4 and
L5, sciatic notch tenderness on the left, and limited range of motion of the
lumbosacral spine: 45 degrees flexion and 15 degrees extension. Lumbosacral
spine pain was not elicited by flexion. Straight-leg-raise (SLR) test was
abnormal bilaterally. Contralateral SLR was negative. Patrick-Faber test was
positive on the left. Id. She had tenderness on palpation of the trochanteric
bursa. AR809. Sensory abnormalities were noted in the left leg. Strength was
normal. Antalgic gait was observed but she could heel and toe walk. Reflexes
that were tested were normal. Id.

48

Dr. Woodruff reviewed Porter’s September 26, 2014, MRI and compared
it to her September 2013 MRI. AR809. He stated, “She has degenerative disc
disease L5-S1 with Modic53 change.” She had 50% loss of height at L5-S1, a
broad-based disc bulge and a left paracentral/foraminal disc protrusion that
seemed to abut the L5-S1 nerve root on the left. Id. Dr. Woodruff discussed
options. Since back pain was a significant part of her symptoms, she could
consider fusion. Disc replacement surgery was available in Denver. She could
not afford to go to Denver for disc replacement. She needed to quit smoking
before deciding on her surgery. “Once she has quit … set up an appointment
with me about 2 weeks later.” Id.
On October 7, 2014, DPT Pfeiffer noted that Porter saw a surgeon who
was going to fuse L5/S1. AR493. She complained of pain and swelling in both
feet. She had not yet seen a physician for thyroid complications. Id. Ober,
Faber, Trendelenburg, and hip scour tests were positive. AR494. She had
positive piriformis, “glute med and glute max tightness. SLS 10 sec on R.
Unable to stand on L.” Id. She was unable to finish standing exercises due to
pain in both feet. Id. The treatment plan would include work on Porter’s hip.
Dr. Pfeiffer planned to progress to a hip/core stabilization program and motor
control retraining program to assist Porter with maximizing her biomechanics
and reducing chronic irritation of hip tissues. Id.

Modic changes (MC) are bone marrow lesions on magnetic resonance
imaging (MRI). http://www.thespinejournalonline.com/article/S15299430(15)01506-5/fulltext, accessed May 4, 2018.
53

49

On October 8, 2014, Porter saw CNP Grimsrud for complaints of bilateral
pedal edema and a puffy face. AR546. She had noticed rapid weight gain the
previous two weeks. AR547. Her feet were tender and her clothes did not fit.
She weighed 182. Physical and psychiatric exams were unremarkable except
for a few rhonchi in the lungs. CNP Grimsrud assessed abnormal weight gain
and dispensed hydrochlorothiazide.54 Id. She counseled Porter on the
cessation of tobacco. Id.
On October 14, 2014, DPT Pfeiffer wrote a discharge summary from
physical therapy. AR490. She noted: “ascends and descends stairs with pain
and difficulty.” Porter was able to walk without significant pain for less than
10 minutes. She could sit 30 minutes, and stand 10 minutes. Id. The patient
reported quite a bit of difficulty performing usual housework activities.
Dr. Pfeiffer reported a positive Ober’s test, hip flexion to 100 degrees before
pain, and positive piriformis, “glute med and glute max tightness. SLS 15 sed
R. 10 sec on L.” Id.
Dr. Pfeiffer reported that Porter was able to perform her HEP properly.
AR491. Her Faber (Patrick) test for hip was positive. The Trendelenburg sign
for “glut med weakness for tear” was positive. Hip scour was positive for
stiffness. Hip strength ranged from 4- to 5/5. DPT Pfeiffer stated that the
decision to discharge was based upon no improvements in pain levels and lack
of ability to consistently attend therapy. Therapist and patient agreed that she
Hydrochlorothiazide (HCTZ) is a diuretic used to control high blood pressure
or edema. https://medlineplus.gov/druginfo/meds/a682571.html, accessed
May 4, 2018.
54

50

should return to therapy following lumbar surgery at which time they could
work to maximize her function. Id.
On October 21, 2014, CNP Grimsrud dispensed Levothyroxine. AR545.
On October 24, 2014, Porter told Dr. Woodruff she was not getting any
better or any worse. AR806. She told Dr. Woodruff that she had quit smoking
a month before and she was ready to consider surgical options. She said she
had about 50-50 back pain and leg pain. She had had multiple sessions of
physical therapy with no relief. Id. On exam, she was in a mild amount of
discomfort, she walked with a normal gait, had intact sensation in her legs,
positive SLR on the left, and normal pulses and strength. Id. On the right, she
had positive Faber, thigh thrust,55 Gaenslen’s,56 and equivocal compression
test. On the left, she had positive Faber, Gaenslen’s and equivocal
compression test. Id. Dr. Woodruff assessed L5-S1 degenerative disc disease
with possible bilateral sacroiliitis. He planned bilateral SI joint injections. Id.
If she gets minimal relief from this, I think we can move forward
with more confidence that the L5-S1 level is her pain generator.
One more test that we could add would be a discogram; however, I

Thigh thrust, a/k/a posterior pelvic pain provocation test is a pain
provocation test used to determine the presence of sacroiliac dysfunction.
https://www.physio-pedia.com/Posterior_pelvic_pain-provocation_test_
(aka_Thigh_Thrust_aka_Posterior_Shear), accessed May 4, 2018.
55

Gaenslen’s Test is one of the five provocation tests that can be used to detect
musculoskeletal abnormalities and primary-chronic inflammation of the
lumbar vertebrae and Sacroiliac joint (SIJ). The subsequent tests include: the
Distraction Tests, Thigh Thrust Test, Compression Test and the Sacral Thrust
Test. https://www.physio-pedia.com/Gaenslen_Test, accessed May 4, 2018.
56

51

don’t think it would give us much useful information as the L5-S1
level is the only degenerated disc.
AR806-07.
On October 28, 2014, Porter saw Ms. Fitzgerald for a pap smear. AR542.
She reported she had quit smoking 2 weeks before. She felt congested in her
chest. AR543. Her medical history included ovarian cystectomy and
orthopedic surgery on her knees. Id. On exam she had wheezing, rhonchi,
rales and crackles. Her abdomen was very firm with tenderness to palpation of
left lower quadrant, slight abdominal guarding and rigidity. Her uterus was
enlarged. The psychometric depression scale was negative. Id. Mental status
was normal and affect was slightly blunted. Porter underwent transvaginal
ultrasound. AR544. Ms. Fitzgerald strongly encouraged her to not start
smoking again and told her that her lung sounds were adventitious. AR545.
On October 30, 2014, Porter saw Steven Dary, a CNP student supervised
by CNP Grimsrud at community health. AR541. This was a 3-month follow-up
and medication review. Medications were Combivent, Albuterol, Nebulizer
supplies, Advair Diskus, Tessalon, Ibuprofen, Meloxicam, HCTZ, Dexilant,
Levothyroxine, Ergocalciferol,57 Abilify, Viibryd, and Bupropion. Id. Porter told
Mr. Dary that she recently started smoking again due to a family member
smoking around her. She felt that all of her medications were working well for
her and she did not report side effects. The ROS was negative. Id. The clinical
physical and psychiatric examinations were unremarkable. AR542. The
Ergocalciferol is Vitamin D, which helps absorption of calcium.
https://medlineplus.gov/vitamind.html, accessed May 4, 2018.
57

52

psychometric depression scale was administered, and Mr. Dary said that Porter
would be referred to a mental health counselor. Her assessment was
congenital hypothyroidism, depressive disorder, and esophageal reflux. Id.
On November 11, 2014, Porter underwent an injection of steroid and
anesthetic into the spinal canal for her diagnosis of thoracic/lumbosacral
neuritis/radiculitis, unspecified. AR531.
On December 5, 2014, Dr. Anderson administered bilateral SI joint
steroid injections. AR518, dup. at AR804.
On December 19, 2014, Dr. Woodruff reevaluated Porter, who reported
that her bilateral SI joint injections provided about 10% relief for 3-4 days.
AR802. Pain levels continued at 6-8/10. Mostly the pain was in her back and
it would progress down her left leg in an L5 or S1 distribution. She told
Dr. Woodruff that she quit smoking 2-3 months ago and wanted to consider
surgery. Id. On examination, her lumbar ROM was limited, pulses were 2+,
straight-leg-raising reproduced left leg pain, and she had no motor or sensory
deficits. Her x-rays and MRI showed degenerative disc disease at L5-S1 with
mild impingement of S1 nerve roots and some foraminal narrowing secondary
to the bulges. Dr. Woodruff stated that he did not think her SI joints were
involved and that he could treat L5-S1 with confidence. He discussed options,
an anterior lumbar interbody fusion (ALIF), which had a higher risk of
nonunion, vs. a transforaminal lumbar interbody fusion (TLIF) 360-degree

53

approach. He discussed the use of bone morphogenetic proteins (BMP)58, and
she was open to this. Id.
On January 9, 2015, CNP Murphy saw Porter for right elbow pain and
tendonitis flare for 5 days. AR539-40, dup. at AR635-36. Right wrist
movements resulted in pain in the proximal forearm, soft tissue pain in the
right elbow, and painful extension, flexion, and rotation of the elbow. AR540.
CNP Murphy wrote, “No depression.” Id. Objectively, Porter weighed 180. She
had pain and swelling of the elbow, and supported the right forearm with the
left hand. Elbow motion abnormal. There was no sign of infection, nodules or
instability. The patient also reported thigh muscle cramps. Elbow x-rays
showed “inconclusive occult fracture” and would be repeated in two weeks. Id.
CNP Murphy noted current conditions/problems: Abnormal recent weight gain,
abdominal pain, thigh muscle cramps, depressive disorder, esophageal reflux,
vitamin D deficiency, hypothyroidism, congenital; polycystic ovaries, polycystic
ovarian syndrome. Id.
CNP Murphy provided a sling, compression anklet, and elbow band for
tendinitis. Id.

Bone morphogenetic proteins (BMP) stimulate bone growth naturally in the
human body. These proteins that exist in the body can be produced,
concentrated and placed in the area of the spine for a spinal fusion to take
place. They can create a fusion without the need for any use of the patient’s
own bone. This eliminates the need for harvesting bone from the patient’s hip.
https://www.spine-health.com/treatment/spinal-fusion/bmp-bonemorphogenetic-proteins, accessed May 4, 2018.
58

54

On January 9, 2015, Charles Voigt, MD, read right elbow x-rays and
stated his impression: “Small joint effusion could be seen with occult radial
head fracture.” AR535.
On January 20, 2015, CNP Grimsrud reported a pre-operative history
and physical exam requested by Dr. Woodruff. The patient’s ECG and chest xray were normal. AR538, dup. AR633, et seq. She assessed tobacco use
disorder, acquired hypothyroidism, vitamin D deficiency, depressive disorder,
esophageal reflux, and pain in the elbow joint. AR539. On this day, the
laboratory reported slightly low calcium and elevated Aspartate Amino
Transferase, ALT, and alkaline phosphatase (at 155, normal range 37-98).
AR637-38. The laboratory reported low Hgb, MCV, MCH, and high RDW.
AR638.
On January 20, 2015, right elbow x-rays ordered due to suspicion of
occult radial head fracture, showed no fracture but a small olecranon spur and
soft-tissue swelling over the olecranon. AR534.
On January 20, 2015, the laboratory reported low hemoglobin, mean
corpuscular volume, mean corpuscular Hgb, and mean corpuscular Hgb
concentration, with elevated red cell distribution width; slightly low calcium
and slightly elevated aspartate amino transferase and ALT, and alkaline
phosphatase 155 (normal range 37-98). AR566.
On February 4, 2015, Dr. Woodruff wrote “To Whom It May Concern,”
describing indications for surgery. He stated that he had been seeing Porter for
4 months and she had already undergone extensive conservative care including
55

PT, NSAID, pain medication, activity restriction, and epidural injections, and
had made minimal progress. Her MRI was relatively unremarkable for nerve
compression. However, the symptoms were almost completely back pain with
referred pain down her legs rather than true radicular symptoms. Her MRI
certainly supported a diagnosis of discogenic pain at L5-S1. Dr. Woodruff did
not think further non-operative care would make any difference for her
symptoms. He believed that fusing L5-S1 gave her the best chance of
improvement in symptoms. She understood that surgery for axial back pain
was not as “reproducible” as surgery for radicular pain. “However, there comes
a time when we have to accept that and do what we can to improve her
symptoms so that she can return to a productive lifestyle.” Id.
On February 6, 2015, Dr. Woodruff’s operation report stated preoperative
and postoperative diagnoses the same, degenerative disc disease, L5-S1.
AR795-796, dup. at AR876, et seq. Dr. Woodruff described anterior lumbar
interbody fusion, L5-S1 (with Dr. David Fromm the co-surgeon, operation
report at AR881-82); insertion of an intervertebral cage; anterior lumbar
instrumentation; local autograft; allograft to supplement the autograft; use of
bone morphogenetic protein; use of intraoperative fluoroscopy, and
intraoperative neural monitoring. Id. Dr. Woodruff performed a radical
discectomy. AR796. He used allograft demineralized bone matrix, mixed with
local autograft and BMP, with a cage that was placed in the disc space, secured
with a shim tamped into L5 and a plate tamped into S1, and locked into
position. Id. Indications for the operation were extensive nonoperative
56

treatment including physical therapy, activity restrictions, anti-inflammatories,
pain medications, muscle relaxers, and epidural injections. AR795-96. She
still remained severely symptomatic. AR796. Her x-rays showed a severely
degenerated L5-S1 disc with healthy discs at other levels. She had minimal
neural impingement. A stand-alone anterior lumbar interbody fusion appeared
to be her best solution. Id. She understood this included a greater risk of
nonunion and that she would need to wear a restrictive brace with a thigh cuff
for 6 weeks post op. She was interested because this did not include a
posterior procedure. Id.
Thomas Denker, MD, managed arterial line placement and placement of
a central line. He stated the reasons: the operation was “an extensive
abdominal fusion procedure” and risk of blood loss was extensive and
probable. AR879. The arterial line was placed without difficulty. The central
line was placed after the patient was intubated and on the ventilator.
Dr. Denker stated that he noted the patient’s chest rising extensively because
the certified registered nurse anesthetist “was actually bagging the patient,
hyperventilating the patient through the machine.” Dr. Denker asked for the
bag to be removed “so as to decompress the lung, not to inflate the lung.”
Dr. Denker said he did not see an indication of pneumo[thorax]. He was
unable to establish the central line through the left subclavian approach and
switched to a left internal jugular vein approach. AR879. A post op chest
x-ray would be taken to rule out pnuemothorax. AR880.

57

On February 7, 2015, Anne Brucker-Busso, MD, reported a consult
requested by Dr. Woodruff. AR871. Porter told her that before coming to the
hospital she had begun smoking again, she was unsure how long. She had
told staff at pre surgery that she was no longer smoking but she would quit for
2 weeks at a time and then restart, about a half-pack a day. Id. She had
COPD and could get wheezy and short of breath when she had an upper
respiratory infection. The previous evening she had one nebulizer treatment.
She had been on oxygen since surgery. Id. On exam, her O2 saturation was
91% on 4 liters of oxygen. Yesterday she had bibasilar zones of postoperative
atelectasis. Dr. Busso ordered a respiratory panel, portable chest x-ray, BNP
and nebulizers every 4 hours as well as Xopenex59 every 2 hours. If she did not
respond, Solu-Medrol could be considered. AR872.
On February 12, 2015, Dr. Woodruff wrote a discharge summary.
AR874. On the evening of Porter’s surgery she started having respiratory
difficulty, was diagnosed with pneumonia, was on oxygen and IV antibiotics
several days, and improved. She was making appropriate progress from a
spine standpoint. Discharge instructions were to walk, avoid bending,
twisting, or lifting over 20 pounds. She would be on supplemental oxygen. Id.
On February 19, 2015, Porter sought ER treatment for fatigue and
nausea. AR864. She had undergone lumbar fusion surgery 1½ weeks before

Xopenex (Albuterol) is a bronchodilator used in an inhaler or nebulizer to
control symptoms of asthma and other lung diseases.
https://medlineplus.gov/druginfo/meds/a682145.html, accessed May 4,
2018.
59

58

and had been diagnosed with pneumonia. AR865. Her electrolytes did not
account for her feeling of weakness. Id. Dr. Hofmann assessed weakness,
recent back surgery and recent pneumonia. AR866.
On February 20, 2015, Dr. Woodruff saw Porter. AR791. She was still
on supplemental oxygen. Her brace fit well. She reported a pain level of 1/10
most days and felt she was 50% improved. Id. Objectively, she had intact
sensation and strength, and negative straight-leg-raising. X-rays showed a
well-seated implant to improve lumbar lordosis. The L4 endplate was now
lordotic rather than kyphotic. She was doing a good job with not smoking and
hopefully could continue to do so. Id.
On February 24, 2015, Dr. Woodruff refilled Oxycodone. AR790.
On February 27, 2015, Porter saw CNP Grimsrud for hospital follow-up
after having a lumbar fusion two weeks before. AR632. Her course was
complicated by post-operative pneumonia. She had stopped smoking since her
hospitalization and said she was doing much better but would wake in the
night gasping for air. She was wearing a thoracic/lumbar brace. Her oxygen
saturation was 94 percent. AR633. CNP Grimsrud assessed hypothyroidism,
vitamin D deficiency, depression and esophageal reflux. Id. She said she
would order an overnight “pulse ox study.” Id.
On March 10, 2015, Dr. Woodruff refilled Oxycodone. AR789.
On March 18, 2015, Porter sought ER treatment for numerous episodes
of vomiting and diarrhea and subjective fever. AR858. On physical exam she
appeared mildly dehydrated and otherwise normal. She was treated with a liter
59

of normal saline bolus Zofran. Id. The clinic impression was suspicion of viral
gastroenteritis. AR859.
On March 20, 2015, Porter saw CNP Grimsrud for shortness of breath,
and CNP Grimsrud assessed COPD. AR632.
On March 26, 2015, Dr. Woodruff saw Porter 6 weeks post-op. She
stated she was doing 80-85% better overall. AR788. Pain levels were 8/10 at
night and 4-5/10 during the day and she was very happy with her progress.
She continued to not smoke. Id. She denied radicular problems. Objectively
she had a normal gait, intact sensation and strength. Her x-rays showed a
well-seated implant and progression of interbody fusion. She could start
weaning out of her brace an hour more per day as tolerated. She should
continue taking calcium and vitamin D. Her pain medications would be
reduced to Hydrocodone at the next visit. Id.
On April 7, 2015, Porter saw CNP Grimsrud in follow-up for her thyroid
medications, and lab work. AR630. She reported that the antidepressants
were working for her. When she was not on them she felt different, with angry
outbursts. She wanted to continue using antidepressants. She had started
smoking again. Id. CNP Grimsrud assessed COPD, hypothyroidism, vitamin D
deficiency, depression and esophageal reflux. AR631. The laboratory reported
elevated TSH and Levothyroxine was increased. AR637.
On April 21, 2015, Dr. Woodruff noted that Porter was taking
Hydrocodone just at night, but was complaining of pain on her left side and
below her belly button. AR787.
60

On May 8, 2015, Porter returned to Dr. Woodruff 3 months after her
surgery, a stand-alone ALIF at L5-S1. AR785. She said she was 80% better
and rated her pain level at 6. She had started smoking a half-pack a day again
3 weeks earlier. Id. She had generalized midline abdominal pain that felt like
a bruise. Strength was 5/5, sensation was intact, pulses were 2+, and cruciate
leg raises are negative. Dr. Woodruff reviewed x-rays and found no loosening of
implants, good interbody fusion, and no motion on flexion and extension views.
Id. He ordered physical therapy, instructing the McKenzie protocol and
modalities. He would see her in a year. He talked to Porter again about the
importance of stopping smoking. Id.
On May 12, 2015, Porter sought ER treatment for palpitations, stating
that for 2 weeks she had intermittently felt her heart racing; it felt like it was
racing on arrival. AR851. Her pulse rate was 98, respiratory rate was 20,
blood pressure 119/77, oxygen saturation 97%. Id. Physical examination was
negative. Id. Thyroid stimulating hormone was 8.77.60 EKG was normal.
AR852. Chest x-ray was clear. Id. Labs showed stable anemia, mild
hypokalemia, and probable mild hypothyroidism. Id. Dr. Neilson’s clinical
impression was palpitations and anxiety. AR853.
On May 13, 2015, Porter saw CNP Grimsrud. AR629. Referring to the
previous evening’s ER visit, “Her symptoms resolved with a neb treatment and

Normal value is .4 to 4. https://medlineplus.gov/ency/article/003684.htm.
Last checked May 4, 2018.
60

61

Xanax.61 They thought her symptoms were related to anxiety so she was
discharged with a Xanax script and told to f/u with PCP.” Id. Porter told
CNP Grimsrud that she was sleeping better using Xanax at bedtime because of
difficulty sleeping. She said she was unable to turn off her mind. She said she
would like to be on anti-anxiety mediation that was not as strong as Xanax so
she could take it during the day. Id. Currently she was on Wellbutrin, Viibryd,
and Abilify. Physical and psychiatric examinations were unremarkable.
AR629-30. CNP Grimsrud assessed COPD, hypothyroidism, depression, and
anxiety disorder NOS. AR630. She renewed Levothyroxine and increased the
dose, and started Buspirone.62 Id.
On May 18, 2015, Porter presented to DPT Pfeiffer at the Physical
Therapy Center after having had anterior lumbar interbody surgery on
February 8, 2015. AR618. Porter stated that she had opted for surgery
following several bouts of failed conservative care for pain levels. Dr. Woodruff
had referred her to evaluate and treat degenerative disc disease. Porter
reported that her symptoms were better following surgery; however, she still
had achiness and left knee pain. Id. She had 45 minutes of therapy. Id. She

Xanax (Alprazolam) is a benzodiazepine used to treat anxiety disorders and
panic disorder. https://medlineplus.gov/druginfo/meds/a684001.html,
accessed May 4, 2018.
61

Buspirone (Buspar) is used to treat anxiety disorders or in the short-term
treatment of anxiety symptoms. Side-effects include drowsiness and
gastrointestinal symptoms.
https://medlineplus.gov/druginfo/meds/a688005.html, accessed May 4,
2018.
62

62

had additional physical therapy sessions on May 26 and 29, 2015; June 2, 8,
9, 15, 18, 24, 26 and 29; and July 8, 10, 17, 20, 2015. AR577-616.
On June 2, 2015, Porter saw CNP Grimsrud for a cough and shortness of
breath with chronic COPD. AR627. Porter told CNP Grimsrud that she had
gone to the ER the previous night due to dyspnea, was diagnosed with
bronchitis, and was discharged with a Z-Pak and steroid burst. Her breathing
was better today. Id. Porter also complained of difficulty sleeping although she
was taking 2 tabs of Amitriptyline nightly. She said they worked when initially
prescribed.
On June 5, 2015, Porter sought ER treatment for increased shortness of
breath. AR845. Her pulse was 103, respiratory rate 18, blood pressure
121/50, and oxygen saturation 98% on room air. Id. She continued to smoke.
She had been using inhalers without relief. Id. She had good air movement
with expiratory wheezes. Id. Dr. Hofmann treated her with a nebulizer and
prednisone. AR846. He noted that her laboratory results showed microcytic
anemia and recommended that she start taking a multivitamin with iron. Id.
Porter had 45 minutes of therapy on each of these dates: June 8, 2015,
June 9, June 15, June 18 and June 24. AR594-607.
On June 25, 2015, Porter saw CNP Grimsrud in follow-up. She was
smoking. She denied concerns with her current medications and had no
concerns. Physical and psychiatric exams were unremarkable. AR626-27.
CNP Grimsrud assessed insomnia, anxiety disorder NOS, COPD, tobacco use

63

disorder, and hypothyroidism. AR627. The laboratory reported elevated TSH
and CNP Grismrud increased Porter’s Levothyroxine dose. AR637.
On July 7, 2015, Porter sought ER treatment for sudden onset of a
choking episode and said she nearly passed out. AR837. Since this episode
she reported generalized weakness and a severe generalized headache similar
to migraines she’d had in the past. Id. Physical exam was negative. AR838. A
head CT was negative. Id. Chest x-ray was clear. AR940. Nathan Lon, MD,
treated her with IV pain and nausea medication. AR841. Her headache
resolved. He assessed headache, choking episode, and near-syncopal episode.
Id.
On July 8, 2015, Porter saw MPT Fasse, for 60 minutes of physical
therapy. AR585. She presented with a general loss of functional strength and
mobility throughout her lumbar and pelvic region limiting her ability to return
to her regular activity level. AR586.
On July 10, 2015, Porter saw MPT Fasse for 60 minutes of physical
therapy. AR582. She stated that she had been better the past 2 weeks with
ambulatory pain, but that lifting and stairs continued to hurt her back. Id.
Pain prevented sitting and standing longer than 1 hours. She had fair TrA and
multifidi strength testing and was unable to perform home exercises properly.
Id. Objectively, she had tightness to palpation of bilateral lumbosacral spinals,
and positive straight-leg-raising. AR583. She had moderately restricted
lumbar flexion, extension, left and right side-bending. Lumbar right lateral
flexion was moderately restricted with significant pain. Left rotation was mildly
64

restricted. Strength was 5-/5 for hips and knees. Id. MPT Fasse assessed
general loss of functional strength and mobility throughout Porter’s lumbar
and pelvic region limiting her ability to return to her regular activity level. On
July 15, 2015, Porter saw CNP Grimsrud for a headache lasting four days.
AR624. She was currently smoking. AR625. With this headache she had
photophobia, phonophobia, and nausea. Id. CNP Grimsrud provided Toradol
IM and assessed migraine headache. Id. She prescribed Sumatriptan63 tablets.
Id.
On July 17, 2015, MPT Fasse provided 70 minutes of physical therapy.
AR579. Porter reported that she was better the past 2 weeks with ambulatory
pain, but lifting and stairs continued to hurt her back. Pain prevented sitting
and standing longer than 1 hour. MPT Fasse reported “fair” TrA and multifidi
strength testing and said the patient was unable to perform home exercises
properly. Id. He reported tightness to palpation of bilateral lumbosacral
spinals, and straight-leg-raising positive for tightness. AR580. He reported
moderately restricted lumbar flexion, extension, left and right side-bending. He
reported that lumbar lateral flexion was moderately restricted with significant
pain. Left rotation was mildly restricted. Id. Strength was 5-/5 for hips and
knees. MPT Fasse assessed general loss of functional strength and mobility

Sumatriptan (Imitrex) is used to treat the symptoms of migraine headaches.
https://medlineplus.gov/druginfo/meds/a601116.html, accessed May 4,
2018.
63

65

throughout her lumbar and pelvic region limiting Porter’s ability to return to
her regular activity level. Id.
On July 20, 2015, Brett Forman, DPT, OCS, provided 70 minutes of
physical therapy. AR576. Porter reported that pain prevented sitting more
than one hour or standing longer than one hour. Dr. Forman reported that
TrA and multifidi strength testing was fair, and that the patient was unable to
perform home exercises properly. Id. He reported tightness to palpation of
bilateral lumbosacral paraspinals. AR577. Straight-leg-raising was positive for
tightness. She had moderately restricted lumbar flexion and extension, and
left and right side-bending. Id. Lumbar right lateral flexion was moderately
restricted with significant pain. Left rotation was mildly restricted. Hip and
knee strength was 5-/5. Id. Dr. Forman stated his assessment: “Patient
presents with a general loss of functional strength and mobility throughout her
lumbar and pelvic region which is limiting her ability to return to her regular
activity level. She would benefit from post-operative therapy to reduce pain
levels, improve mobility, and improve her strength and tolerance for a more
active lifestyle. 6/9: Patient’s motion and strength is properly progressing at
this time.” The physical therapy treatment plan was for exercise, manual
therapy, and neuromuscular re-education. Id. She would be seen twice a
week for 6 to 8 weeks. Id.
On August 7, 2015, Porter saw CNP Grimsrud for medication check,
needing medication changes to something she could get through the patient
medication program or on the 5-dollar list. AR623. Her medications were
66

Ibuprofen, ProAir inhaler, Abilify, Xanax, Sumatriptin for migraine,
Ondansetron, Levothyroxine, Bupropion, Combivent, Albuteral, HCTZ,
Meloxicam, Dexilant, and Viibryd. Id. Porter stated that she had had a lot of
anxiety lately but could not afford Alprazolam. Id. She said Buspirone helped
some but not completely. Amitriptyline was too expensive at its current
dosage. She had difficulty sleeping due to anxiety and stress. She was
smoking. Id. Physical and psychiatric exams were unremarkable. AR623-24.
CNP Grimsrud assessed anxiety disorder NOS, insomnia and COPD. AR624.
She adjusted Porter’s medications. AR624.
On October 8, 2015, Porter sought ER treatment for back pain. AR832.
Pain was described as constant and aching. Id. She reported smoking 2-3
cigarettes a day. Id. She was initially tachycardic (pulse 121) but this
improved. Brooke Eide, MD, assessed musculoskeletal pain, gave her pain
medications and discharged her. AR833.
On October 14, 2015, Porter saw CNP Grimsrud to ask if she could get a
medication for anxiety to replace Alprazolam and Wellbutrin because these
were not available through the medication assistance program. AR943-44.
She also complained of ongoing cough and wheezing but had been taking
antibiotics and a Prednisone burst and thought she was better. AR944. She
reported anxiety, emotional lability, depression, and sleep disturbance. Id.
CNP Grimsrud assessed insomnia, generalized anxiety disorder, COPD and
depression. Id.

67

On October 19, 2015, Porter tried to move a pot of boiling water and
spilled it onto her anterior thighs. AR827. She was taken by ambulance to the
emergency room. Id. She was treated with Fentanyl, Morphine, Toradol, and
Silvadene ointment for second-degree burn on her right thigh and first-degree
burn on her left thigh and leg. AR828.
On November 5, 2015, Porter saw Dr. Hapcic for her scald burns from 4
to 6 weeks prior when a boiling pot of spaghetti doused her pants. AR950.
Examination showed healing in process. Id.
On November 19, 2015, Porter saw Mr. Murphy at community health for
an upper respiratory infection. She had started smoking again, had been
diagnosed with COPD in February 2015, and did not want to get pneumonia
again. AR940. Her O2 saturation was 99%. Id. Her lungs were clear but
respiration rhythm and depth were moderately shallow. AR941. She had
wheezing and rhonchi. Id. CNP Murphy assessed chronic obstructive
pulmonary disease, unspecified; nicotine dependence, current smoker; and
acute bronchitis. Id. She prescribed Tessalon Perles and also provided
Silvadene cream to treat Porter’s burns. Id.
On December 1, 2015, Porter saw Grimsrud for congestion. AR946. She
was smoking. Id. She had recently been treated with a course of Cephalexin
and her symptoms improved but she never actually got better she said. Id. On
exam, lung auscultation revealed decreased breath sounds and wheezing. Id.
CNP Grimsrud assessed COPD and UARI and prescribed Cipro and a nebulizer
machine. Id.
68

E.

Claimant and Lay Witness Statements
On September 25, 2013, Porter completed a “Disability Report” with her

on-line application. She named a person DDS could contact “who knows about
your medical conditions:” Amber Mashek, XXXX Avenue, Rapid City, SD
57701, Tel 605-XXX-XXX. AR231.
Conditions alleged were back and knee problems, neuroma, depression,
and acid reflux. AR231-32.
Porter reported that she stopped working because of her conditions on
September 1, 2011. AR233.
She stated that she received a GED in January 1996 and did not attend
special education. She listed past work as a child care provider January 2008
to September 2011, 8 hours a day, 5 days a week, for $50 a day. AR233. She
listed her tasks in this job: she watched, fed, and taught children. She lifted
children weighing up to 20 pounds. AR234.
She listed her medications: Bupropion, Dexelant, Nortriptyline, and
Viibryd. She stated that Dr. Cote had treated “all physical conditions” from
January 2011 to August 2013. AR235. She stated that Jennifer Theilan at
Community Health treated her depression and acid reflux. AR236.
On October 28, 2013, Porter completed a handwritten “function report.”
She stated she lived in a house with her son. She wrote, “I am on weight limits
and have pain with excessive walking, squatting, kneeling and standing to [sic]
long.” AR239.

69

Porter described her daily activities: “get up and get my son up for school
and little by little do house work and go to appointments.” She had pets and
fed them and let them outside when needed. AR240. “My 17 y/o son helps
with bathing, feeding and letting them out when he is not in school.” Asked
what she could do before she became disabled, Porter stated “I could clean
houses and do day care.” AR240. Asked if her conditions affected sleep, she
wrote, “have a hard time falling asleep and staying asleep and being
comfortable.” AR240.
She indicated she had no problems with personal care. AR240. She
indicated that she did not need reminders to take care of personal care needs
or take medicine. AR241.
She wrote that she prepared “microwavable meals, sandwiches or my son
feeds himself majority of the time.” She prepared meals once a week and it
took an hour, with frequent breaks. AR241. Asked about house and yard
chores, Porter said she sat down to fold clothes and took frequent breaks to do
dishes. “Son does them majority.” AR241. She did laundry every 3 days and
this took about three hours. Asked if she needed help doing these things, she
wrote, “son washes and I rinse or he just does them.” AR241.
Porter stated that she did not do yard work because of the extent of
movements and lifting. She said she went outside twice a day, was able to
drive and go out alone. She shopped twice a month in stores for groceries and
home necessities, and her son helped with the lifting. It took about an hour.

70

Porter said she was able to pay bills, count change, handle a savings
account, and use a checkbook or money order. AR242.
Porter stated that she read three or four times a day. AR243. She
talked to her mother on the phone every other day or her kids when they
called. AR243. Asked to describe changes in her social activities, she stated “I
don’t socialize with anyone like I used to and I don’t go any place unless I have
to.” AR244.
She circled activities and postures affected by her conditions: lifting,
squatting, bending, standing, walking, sitting, kneeling, stair climbing, and
completing tasks. AR244. She explained: “I can’t kneel down because I can’t
put pressure on left knee. Liftin [sic] I have a 10 lb weight limit. Bending I
have pain. Can’t stand to [sic] long or it causes pain.” AR244.
Porter said she could walk down the driveway before resting, and needed
to rest 10 minutes before she resumed walking. Asked how long she could pay
attention, she wrote that she got side-tracked easily. Asked, do you finish what
you start? She said, “No.” She could follow a recipe “OK I guess.” AR244.
Porter said she got along very well with authority figures. AR245. She
said she had never been fired for not getting along with others. “I am on
antidepressents that help.” She said changes in routine made her very
irritated. AR245. She used her knee brace, prescribed in 2009, daily and at
bedtime. AR245.

71

Porter reported her medications and side-effects: Hydrocodone,
drowsiness; Nortriptyline, drowsiness; Bupropion, drowsiness; Viibryd,
drowsiness; and Dexilant, no side-effects. AR246.
Under “Remarks” she wrote: “It has got to the point to where I have to
take many breaks or do nothing at all. Due to pain and numbness and tingling
in legs.” AR246.
Porter, by Attorney Myler, completed an undated “Disability Report –
Appeal,” stating that there had been no change in her conditions since her first
disability report. AR248. He listed medical providers: Dr. Cote, Dr. Wilson,
Community Health, ProMotion, The Physical Therapy Center, and
Dr. Anderson. AR249-51. Medications were Bupropion, Dexelant,
Nortriptyline, and Viibryd. AR251. She stated, “I have to do things slowly. I
have to limit how much weight I carry and how far I can walk.” AR252.
On May 25, 2014, Porter completed a handwritten function report.
AR257. In response to the question, how do conditions limit ability to work,
she stated:
I have a weight limit of no more than 20 lbs. If I walk or stand
excessively I start hurting in my feet, legs and back. They start
throbbing, aching and sometimes from my lower back down to my
feet I start getting a tingling and numbness feeling . . . . I have to
then sit for 20-30 minutes. If I sit much longer I start to feel
tingling again in my feet and legs and I get stiff and sore. Taking
so many breaks makes me upset because it means it will take me
longer to get things accomplished and get upset. This makes me
feel worthless. When I start to feel this way I find it difficult to find
the motivation or will power to get restarted and then I feel even
worse.
AR257.
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Porter described her daily activities.
I get up and get dressed the[n] take my 17 yr old son to school.
(About once a week I can’t get out of bed to take him so he walks
and I lay there until I can get up). Two days a week I go to
physical therapy when I am not there I try to do what I can at
home so that things don’t.
AR258.
Porter described her personal care: Bathe, hair care – “sometimes when
depressed I don’t feel like taking care of myself.” “Putting my shoes on and
tying them is difficult sometimes.” AR258. Asked if she needed reminders,
Porter wrote, “My boyfriend calls and asks if I have taken my medication or
not.” AR259. She prepared food that did not require her to stand at the stove.
AR259. She did “light cleaning, laundry and dusting if I can sit. My son does
the heavy cleaning and my oldest son comes over to do lawn maintenance.” It
took 20-30 minutes to do dishes and laundry but she rested in between and
sometimes her son finished for her. AR259.
She went outside one to three times a day, could drive a car, and “I can
go out on my own but I don’t like to be by myself so I usually have someone
with me.” AR260. She shopped for food once a month for one to two hours
and sometimes used the electric chair to shop. AR260.
Her interests were reading, TV, fishing and camping.
I read in bed because it hurts less to lay down. I just reposition
myself every so often . . . . I can’t fish much anymore because I
can’t walk and/or carry equipment to the site. I don’t camp much
anymore because it is too hard on me. I don’t enjoy movies as
much because I can’t sit through it.
AR261.
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Socially, she talked on the phone daily and saw friends and/or family
two or three times a week when they came to visit. AR261. “I don’t go places
very often. Sometimes to my son’s house or friends house about once a month.
. . . .If I go somewhere it is with people I know and trust and I carry on
coversations [sic] . . . . I don’t like going anywhere without someone so I almost
always have someone go with me.” AR261.
Porter stated, “I stay more secluded than I use to.” AR262. She reported
restrictions: “weight restriction 20 lb. Sitting more than 20-30 min. Standing
or walking more than 10-20 minutes. Completing tasks is affected by needing
to take frequent breaks. Depression affects motivation and ability to do things
as well as ability to concentrate.” AR262. She stated that she could walk a
half block, then rest 5-10 minutes. “I don’t walk to [sic] much further due to
feet back and knees. I also get winded and have to use my inhaler if I push it.”
AR262. “Climbing stairs, kneeling, squatting hurt my left knee. I cause a lot of
pressure and pain. I have to be careful when I reach or bend so that my back
doesn’t tweak.” AR264.
Asked how long she could pay attention, Porter responded, “I don’t know
– sometimes I really struggle.” AR262. She stated that she did not finish things
she started. AR262. She said she could follow a recipe. She did not know how
well she followed spoken instructions because that did not happen often.
AR262.
Porter stated that she did not handle stress well. “My medications help
manage the stress. If I get too overwhelmed I cry.” AR263. Asked how well
74

she handled changes in routine, Porter wrote, “Throw’s me off and causes extra
stress. I have trouble getting back on task.” AR263. She stated that she
would be “starting Abilify soon to help with depression.” AR264.
Asked if she had noticed unusual fears, Porter responded “Being alone – I
worry about being hurt a lot. I worry about paying bills.” AR263.
For pain relief she used a heating pad, ice packs, TENS unit, and knee
brace. She said she lost her knee brace and could not afford another. AR263.
In her third disability report, Porter stated that she took medications to
help manage pain and that her back and knees hurt constantly. AR265. She
added new conditions to her claim: asthma and COPD. AR265.
She listed medications: Abilify for depression, Benzonatate for cough,
Bupropion for depression, Combivent for asthma, Dexelant for acid reflux,
Levothyroxine for a thyroid condition, Lyrica for “Diabetes related pain,”
Meloxicam for arthritis, Nortriptyline for pain, Tramadol for pain, Vetolin for
asthma and COPD, and Viibrid for depression. AR268. She noted no side
effects on this report. Id.
She described the effect of her conditions on activities: when cleaning
she stopped frequently to rest. “The pain I am in constantly sometimes
prohibits me from doing things. If I over do it even a little bit, then I am out of
commission for two plus days.” She stated that she was “home bound due to
breathing issues and pain in my back and knees and hips.” AR269.
In a pre-hearing form she stated, “I cannot squat due to my left knee
prevents me from squatting. It swells & hurts. There is hardly any carlige [sic]
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in my knee.” AR280. In her pre-hearing form she reiterated the daily activities
and limitations essentially as stated in her disability and function reports.
AR280-81.
F.

Opinion Evidence
On December 19, 2013, a DDS non-examining consultant, Bich Duong,

MD, signed an assessment form. AR104-05, 113-14. Dr. Duong said, “clmt
age 43 w GED and physical RFC for light work w occasional limitations to
climb ramps, ladders, ropes, stairs and scaffolds. MRFC w moderate
limitations. Clmt can do other simple unskilled work.” AR104-05, 113-14.
On July 17, 2014, a DDS non-examining consultant Eugene Heller, MD,
opined physical RFC for light work, with a 4-hour stand and/or walk
limitations and capacity to sit 6 hours. AR125. Dr. Heller opined that Porter
was able to frequently balance, stoop, kneel, and crouch; occasionally climb
ramps/stairs, and crawl; never climb ladders/ropes/scaffolds. He opined that
Porter should avoid concentrated exposure to extreme cold and to extreme
heat. AR126. She should avoid concentrated exposure to hazards “due to
reduced agility and pain meds.” AR125-27. Dr. Heller provided rationale:
“Clmt has low back discomfort due to an L5 radiculopathy. She has responded
well to injection therapy. She still has a reduced range of motion that has
caused her problems. The back pain is not worsening and treatment is good.”
AR127.
On December 9, 2013, DDS non-examining psychologist, Junko
McWilliams, Ph.D., opined on Porter’s condition in reference to the paragraph
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“B” criteria found in 20 CFR § 404.1520a(c)(3), 20 CFR Part 404, Subpart P,
Appendix 1, Listing 12.00C. AR101. He opined Porter had “mild” restriction of
activities of daily living and social functioning; “moderate” difficulties
maintaining concentration, persistence, or pace; and no episodes of
decompensation of extended duration. Id.
Dr. McWilliams opined Porter’s mental RFC was not significantly limited
with two exceptions: She had moderately limited ability to carry out detailed
instructions, and moderately limited ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of
rest periods. He opined “Limitations do not preclude her from performing the
simple mental demands of competitive work on a reg. basis.” AR103.
Dr. McWilliams stated the most informative factors in assessing Porter’s
credibility were her ADLs, precipitating and aggravating factors, and
medication treatment. AR102. He found her “partially credible. Able to do
ADLs and house work with pain, ROM and strength normal.” Id.
On July 17, 2014, a DDS non-examining psychologist, Mark Berkowitz,
Psy.D., opined on Porter’s condition in reference to the paragraph “B” criteria.
AR136. He opined “mild” restriction of activities of daily living and social
functioning; “moderate” difficulties maintaining concentration, persistence or
pace; and no episodes of decompensation of extended duration. Id.
Dr. Berkowitz opined Porter’s mental RFC was not significantly limited
with two exceptions: She had moderately limited ability to carry out detailed
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instructions, and to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods.
AR139-40. He stated depressive disorder was “first identified 04/25/13. 7/13
note found Clmts total score on beck’s depression inventory was 12, placing
clmt in the ‘mild’ mood disturbance category.” AR140. Dr. Berkowitz noted:
Clmt wakes easily, no high irritability, social w/d or loss of
interest. Clmt not feeling tired or poorly. Clmt well groomed,
speech well organized and articulate, answered questions and
readily divulged information. There was appropriate eye contact
and no abnormal movements noted. Affect appropriate, no
abnormalities in thought content, perception or process noted.
Assessment depression w anxiety and clmt encouraged to seek
add’l attention if worsened. . . . .
AR140.
Dr. Berkowitz opined, “Claimant does not appear limited to only simple
work. Allegations are partially credible. Claimant is able to persist at tasks
that can be learned in up to three months on the job….” AR128. Dr. Berkowitz
noted the following factors that were the most informative in assessing Porter’s
credibility of her statements: the individual’s ADLs, precipitating and
aggravating factors, and medication treatment. AR137. He found her “partially
credible” and noted she was “able to do ADLs and house work with pain, ROM
and strength normal.” Id.
G.

ALJ’s Decision
In a decision dated January 22, 2016, ALJ Kilroy found Porter not

disabled or entitled to disability benefits. AR14-23. The ALJ found Porter had
not engaged in substantial gainful activity since her alleged disability onset
78

date of June 5, 2013, that she had severe impairments, but they did not satisfy
the per se disability requirements in Appendix 1 Listing of Impairments, and he
proceeded to assess Porter’s RFC. AR16-18.
ALJ Kilroy determined Porter had the RFC for light work as defined in 20
C.F.R. § 404.1567(b) and 416.967(b) except she is able to be on her feet up to
four hours in an eight hour day, and sit for an hour at a time and up to eight
hours in an eight hour day. She can lift twenty pounds occasionally and ten
pounds frequently, seldom climb ladders and scaffolds, and crawl, and can
perform all other postural activities on an occasional basis. She should avoid
concentrated exposure to extreme cold and vibrations. AR18.
ALJ Kilroy determined Porter could not perform her past relevant work as
a childcare attendant. AR22.
With the assistance of a Vocational Expert (VE), ALJ Kilroy determined
Porter could perform other work based on her age, education, work experience,
and RFC. AR22-23. Specifically, ALJ Kilroy determined Porter was not
disabled or entitled to disability benefits because she could perform other
sedentary and light occupations, including the representative sample the VE
identified at the hearing: sedentary—food & beverage order clerk; light—sewing
machine operator, and office helper. AR23.
H.

Issues Before This Court
1.

Whether the ALJ misstated the alleged onset date and failed to

properly determine the potential onset date of disability influencing the rest of
the sequential evaluation?
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2.

Whether the ALJ’s failure to identify severe impairments at step

two requires reversal and remand?
3.

Whether the ALJ’s failure to develop longitudinal evidence

pursuant to 20 C.F.R. § 404.1512(d) and to order consultative examinations by
acceptable medical sources to diagnose psychological and pulmonary
impairments was harmful error?
4.

Whether the ALJ’s residual functional capacity (“RFC”) assessment

failed to comply with legal standards and was unsupported by substantial
evidence on the record as a whole?
5.

Whether the ALJ’s step five decision failed to comply with legal

standards and was unsupported by substantial evidence on the record as a
whole?
DISCUSSION
A.

Standard of Review.
When reviewing a denial of benefits, the court will uphold the

Commissioner’s final decision if it is supported by substantial evidence on the
record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla,
less than a preponderance, and that which a reasonable mind might accept as
adequate to support the Commissioner’s conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425
(8th Cir. 1975). “This review is more than a search of the record for evidence
supporting the [Commissioner’s] findings, and requires a scrutinizing analysis,
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not merely a rubber stamp of the [Commissioner’s] action.” Scott ex rel. Scott
v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered,
citations omitted).
In assessing the substantiality of the evidence, the evidence that detracts
from the Commissioner’s decision must be considered, along with the evidence
supporting it. Minor, 574 F.3d at 627. The Commissioner’s decision may not
be reversed merely because substantial evidence would have supported an
opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf
v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two
inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should
neither consider a claim de novo, nor abdicate its function to carefully analyze
the entire record.” Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)
(citations omitted).
The court must also review the decision by the ALJ to determine if an
error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311
(8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability analysis.
Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d
852, 853 (8th Cir. 1998)(citations omitted). The Commissioner’s conclusions
of law are only persuasive, not binding, on the reviewing court. Smith, 982
F.2d at 311.
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B.

The Disability Determination and the Five-Step Procedure.
Social Security law defines disability as the inability to do any

substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 404.1505. The impairment
must be severe, making the claimant unable to do his previous work, or any
other substantial gainful activity which exists in the national economy.
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The ALJ applies a five-step procedure to decide whether an applicant is
disabled. This sequential analysis is mandatory for all SSI and SSD/DIB
applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R.
§ 404.1520. When a determination that an applicant is or is not disabled can
be made at any step, evaluation under a subsequent step is unnecessary.
Bartlett v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985). The five steps are as
follows:
Step One: Determine whether the applicant is presently engaged
in substantial gainful activity. 20 C.F.R. ' 404.1520(b). If the
applicant is engaged in substantial gainful activity, he is not
disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or
combination of impairments that are severe, i.e. whether any of the
applicant=s impairments or combination of impairments
significantly limit his physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c). If there is no such impairment
or combination of impairments the applicant is not disabled and
the inquiry ends at this step. NOTE: the regulations prescribe a
special procedure for analyzing mental impairments to determine
whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821
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(8th Cir. 1992); 20 C.F.R. § 1520a. This special procedure
includes completion of a Psychiatric Review Technique Form
(PRTF).
Step Three: Determine whether any of the severe impairments
identified in Step Two meets or equals a AListing@ in Appendix 1,
Subpart P, Part 404. 20 C.F.R. § 404.1520(d). If an impairment
meets or equals a Listing, the applicant will be considered disabled
without further inquiry. Bartlett 777 F.2d at 1320, n.2. This is
because the regulations recognize the “Listed” impairments are so
severe that they prevent a person from pursuing any gainful work.
Heckler v. Campbell, 461 U.S. 458, 460, (1983). If the applicant’s
impairment(s) are severe but do not meet or equal a Listed
impairment the ALJ must proceed to step four. NOTE: The “special
procedure” for mental impairments also applies to determine
whether a severe mental impairment meets or equals a Listing.
20 C.F.R. § 1520a(c)(2).
Step Four: Determine whether the applicant is capable of
performing past relevant work (PRW). To make this determination,
the ALJ considers the limiting effects of all the applicant’s
impairments, (even those that are not severe) to determine the
applicant’s residual functional capacity (RFC). If the applicant=s
RFC allows him to meet the physical and mental demands of his
past work, he is not disabled. 20 C.F.R. §§ 404.1520(e);
404.1545(e). If the applicant’s RFC does not allow him to meet the
physical and mental demands of his past work, the ALJ must
proceed to Step Five.
Step Five: Determine whether any substantial gainful activity
exists in the national economy which the applicant can perform.
To make this determination, the ALJ considers the applicant’s
RFC, along with his age, education, and past work experience. 20
C.F.R. § 1520(f).
C.

Burden of Proof.
The plaintiff bears the burden of proof at steps one through four of the

five-step inquiry. Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994);
Mittlestedt, 204 F.3d at 852; 20 C.F.R. § 404.1512(a). The burden of proof
shifts to the Commissioner at step five. Johnson v. Chater, 108 F.3d 178, 180
(8th Cir. 1997). “This shifting of the burden of proof to the Commissioner is
83

neither statutory nor regulatory, but instead, originates from judicial
practices.” Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999). The burden
shifting at step five has also been referred to as “not statutory, but . . . a long
standing judicial gloss on the Social Security Act.” Walker v. Bowen, 834 F.2d
635, 640 (7th Cir. 1987). Moreover, “[t]he burden of persuasion to prove
disability and to demonstrate RFC remains on the claimant, even when the
burden of production shifts to the Commissioner at step five.” Stormo v.
Barnhart 377 F.3d 801, 806 (8th Cir. 2004).
D.

Did the ALJ Err in Determining the Alleged Disability Onset Date?
The ALJ stated June 5, 2013, was Ms. Porter’s “alleged disability onset”

date. AR16. Ms. Porter asserts this to be error. She states she alleged her
impairments rendered her unable to work as of September 1, 2011. Ms. Porter
infers that the field office fixed June 5, 2013, as her alleged onset date with the
legal doctrine of res judicata in mind because of her prior disability application.
If this is what occurred, Ms. Porter alleges this to be error because the
Commissioner was required to consider whether new evidence was new and
material, in which case res judicata would not apply. The new evidence
Ms. Porter points to is the evidence of her lumbar fusion surgery which
occurred on February 6, 2015.
1.

Why Does the Disability Onset Date Matter?

Ms. Porter’s argument brings into consideration the differences between
Title II disability benefits and Title XVI benefits. SSI benefits are sometimes
called “Title XVI” benefits, and SSD/DIB benefits are sometimes called “Title II
84

benefits.” Ms. Porter applied for both types of benefits. Receipt of both forms of
benefits is dependent upon whether the claimant is disabled. The definition of
disability is the same under both Titles. The difference--greatly simplified--is
that a claimant’s entitlement to SSD/DIB benefits is dependent upon one’s
“coverage” status (calculated according to one’s earning history), and the
amount of benefits are likewise calculated according to a formula using the
claimant’s earning history. There are no such “coverage” requirements for SSI
benefits, but the potential amount of SSI benefits is uniform and set by statute,
dependent upon the claimant’s financial situation, and reduced by the
claimant’s earnings, if any. Title II benefits may include a 12-month period of
benefits retroactive to the date of application; Title XVI benefits are not
retroactive to the application date. SSR 83-20; 20 C.F.R. §§ 404.316, 416.501.
There are corresponding and usually identical regulations for each type of
benefit. See e.g. 20 C.F.R. § 404.1520 and § 416.920 (evaluation of disability
using the five-step procedure under Title II and Title XVI).
Here, Ms. Porter applied for benefits August 27, 2013. Therefore, Title
XVI benefits can only begin as of August 27, 2013, so long as Ms. Porter
establishes her disability on or before that date.64 However, since Title II
benefits can be retroactive up to 12 months prior to the application date, if
Ms. Porter can establish she was disabled at some time prior to August 27,
2012, she would potentially be entitled to retroactive disability benefits. The

The onset date is the date of filing for Title XVI claims and the exact onset
date is generally not necessary to determine. See SSR 83-20.
64

85

issue as to the correct alleged onset date, then, applies only to Ms. Porter’s
application for Title II benefits. It would not affect the amount of benefits
payable to her under Title XVI (unless the onset date were after August 27,
2013).
One may become disabled (1) prior to filing an application for disability
benefits, (2) while one’s application is pending, or (3) after one’s application is
finally denied. In the first situation, as to Title II benefits, if one was disabled
prior to the time one filed an application for disability benefits, one may receive
retroactive benefits dating back to the date one became disabled up to a
maximum of 12 months’ worth of retroactive benefits. 20 C.F.R.
§ 404.621(a)(1). If one were disabled for more than 12 months before the date
of application, one could receive 12 months’ worth of retroactive benefits. Id. If
one were disabled 3 months prior to applying, one could receive 3 months’
worth of retroactive benefits. Id.
In the second situation, if one were not yet disabled at the time benefits
were applied for but became disabled while one’s application was pending,
benefits will be awarded for the first month in which one actually met all the
requirements for being disabled. 20 C.F.R. § 404.620(a)(1). So if one applied
for benefits in January, but first became disabled in September, benefits would
be awarded beginning in September notwithstanding the January application
date. Id.
In the third situation, if one becomes disabled after the ALJ issues a
decision following a hearing, the original application no longer remains in effect
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and the claimant must file a new application for benefits (barring appeal of the
first decision). 20 C.F.R. § 404.620(a)(2).
The onset date of disability also may affect the monthly benefit amount
awarded under Title II. The monthly amount under Title II is based on one’s
earnings, and months with zero earnings are not included in the calculation if
one were disabled in those months. See 20 C.F.R. § 404.211. Therefore, it is
to a claimant’s advantage to establish disability during a period one did not
have any earnings, even if disability benefits cannot be awarded going that far
back because the time period under consideration is more than 12 months
prior to the date of application for disability benefits. In Ms. Porter’s case, she
had no earnings in 2012-13 and earnings that did not constitute SGA in 2014.
If she can establish she was disabled as of 2011, these zero- and low-earnings
years (2012-14) will not go into the calculation of her monthly benefit amount
and, therefore, result in a higher monthly benefit figure. Id.
2.

The Law Applicable to Determining Alleged Onset Date
a.

Onset Date After Denial of an Earlier Application

A distinction must be made between determining an alleged onset date
when a claimant files an initial application for disability benefits, and
determining alleged onset date where a first application for benefits was denied
and the claimant then files a second application. The latter is the situation
presented by Ms. Porter’s case.
As discussed above, if one becomes disabled after the ALJ issues a
decision following a hearing on one’s first application, that initial application no
87

longer remains in effect and the claimant must file a new application for
benefits (again, barring an appeal of the first decision). 20 C.F.R.
§ 404.620(a)(2). This would logically lead to the conclusion that the alleged
onset date for the second application could be no earlier than the day after the
ALJ issued its unfavorable decision on the first application. That is exactly the
situation presented here.
The Commissioner’s internal policy guidance bears out this
interpretation. If an onset date is determined to be in the period previously
adjudicated on the first application for benefits, the first Title II application may
be reopened (but only under circumstances not present in Ms. Porter’s case).
See POMS DI 25501.220C2c; POMS DI 27510.005A, D.65 Hence, after the first
ALJ issued its unfavorable decision, Ms. Porter could have (1) sought to reopen
that case, or (2) she could have appealed the case to the Appeals Council and
ultimately to this court, or (3) she could have reapplied. She chose to do the
latter. Each choice had consequences.
Where a claimant contends her condition worsened after the (first) ALJ
issued its decision, if the claimant chooses to appeal, the court will only
consider the record that was before the (first) ALJ when that ALJ issued its

The court notes Ms. Porter never asserts she asked the Commissioner to
reopen her original application. It does not appear that there are
circumstances justifying reopening Ms. Porter’s previously adjudicated claim.
See POMS DI 27510.005D. See also 20 C.F.R. §§ 404.987-404.996. In any
case, even if Ms. Porter’s second application for benefits could be construed to
be a request to reopen her first application so as to allow her to submit new
evidence, the Commissioner’s decision not to reopen a case is not subject to
judicial review. Califano v. Sanders, 430 U.S. 99, 107-08 (1977).
65

88

decision.66 Rice v. Comm’r. of Soc. Sec., 114 F. Supp. 3d 98, 109-10 (W.D.N.Y.
2015).
If the claimant instead chooses to reapply for benefits, new evidence
which was not part of the first administrative record may be introduced and
considered, but barring circumstances which would justify reopening the case,
the disability onset date for the second application cannot be set for any earlier
than the day after the first ALJ’s decision. See 20 C.F.R. § 404.620(a)(2);
POMS DI 27510.005A (“Adjudicators’ consideration on the subsequent claim is
limited to the period after the period adjudicated by a prior final determination
or decision. . .”). See also POMS DI 25501.250(A)(3) (if a prior adverse
determination cannot be reopened, the Commissioner cannot establish the
established onset date earlier than the day after the last adverse
determination). See also 3 Soc. Sec. Law & Prac. § 39:10 (Mar. 2018 Update) (if
one files a subsequent claim for disability and the alleged onset date is in a
previously adjudicated period (i.e. the period covered by the first application),
the Commissioner must reopen if possible. If it is not possible to reopen, the

An exception to this rule is where new and material evidence is presented to
the Appeals Council and made a part of the record. In such cases, the court on
appeal considers the new evidence and hazards a guess as to what the ALJ
would have decided had the ALJ had the benefit of the new evidence before it.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); Mackey v. Shalala, 47
F.3d 951, 952 (8th Cir. 1995); Riley v. Shalala, 18 F.3d 619, 622 (8th Cir.
1994); Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992); Browning v.
Sullivan, 958 F.2d 817, 822-23 (8th Cir. 1992). Ms. Porter did present new
and material evidence to the Appeals Council, but it was a medical record from
January, 2017 as to her left knee (AR8). This exception would not expand the
scope of the alleged disability onset date to prior to June 5, 2013.
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89

disability onset date is the date after the previous ALJ issued its unfavorable
decision).
The reapplication rule has sometimes been equitably tolled, but only in
rare situations such as where the Commissioner denied disability applications
based on secret rules and reasons which the applicants had no way of knowing
existed. Dixon v. Shalala, 54 F.3d 1019, 1038-39 (2d Cir. 1995). Or where the
Commissioner destroyed claimants’ disability application files after having been
put on notice that continued litigation would ensue regarding those files. Id.
The court has not been made aware of any circumstances which would justify
equitable tolling in Ms. Porter’s case. And, although she makes a passing
reference to “if” the Commissioner destroyed her first case file, she never
asserts that “if” as an actual fact.
If Ms. Porter had appealed her first application for benefits to this court
and the court remanded, she would potentially be eligible for benefits dating
back to the date of her first application and the 12 months preceding that
application so long as she showed she was disabled during that period.
Johnson v. Sullivan, 922 F.2d 346, 356-57 (7th Cir. 1990). However, she did
not appeal the denial of benefits on her first disability application. Instead, she
reapplied. That reapplication had consequences—namely the legal imposition
of an onset date of June 5, 2013. See 20 C.F.R. § 404.620.
b.

Res Judicata

Ms. Porter claims the Commissioner improperly applied the doctrine of
res judicata to her case without following the rules for doing so. That argument
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is a red herring. Res judicata is not the same as adopting a disability onset
date that starts the day after a prior adjudication. Res judicata encompasses
two concepts: issue preclusion and claim preclusion. Plough ex rel Plough v.
West Des Moines Community Sch. Dist., 70 F.3d 512, 514-15 (8th Cir. 1995).
Issue preclusion prevents a party who was part of a cause of action from
relitigating an issue or a finding of fact in a subsequent cause of action in
which the party also participates. Id. Claim preclusion prevents the
relitigation of an entire claim on which final judgment was rendered and the
preclusion goes to not only the parties in the first action, but also to parties
who were in privity with those parties and preclusion extends not only to the
claims litigated, but to those claims that could have been litigated in the first
case. Id.
In the administrative context specifically involving Social Security
disability claims, the Commissioner applies res judicata to discharge a
subsequent claim when a claimant does not avail herself of the appeals process
on her first application and then files a second or subsequent application and
provides no new facts or evidence. See POMS GN 04040.010. As the
Commissioner states, when the agency is presented with “the same person, the
same issue and the same facts and we have already issued a decision to that
person which has become final (no appeal filed timely), then res judicata
protects SSA from having to consider the same claim (on which it has already
issued a decision) again and again, potentially ad infinitum.” Id. The
Commissioner goes on to note that “if anything has changed, the adjudicator
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should not apply res judicata but should adjudicate the second claim in the
usual manner.” Id.
It is clear the Commissioner did not apply res judicata to Ms. Porter’s
claim because if she did, Ms. Porter’s claim would have been dismissed
immediately without the usual adjudicatory processes. Id. Res judicata clearly
does not apply in this case because Ms. Porter’s second application presented
new evidence which was not part of the record in her first application.67
Finally, unless a constitutional claim is urged (Ms. Porter does not so urge
herein), the Commissioner’s application of res judicata has been held not
subject to judicial review. See Hennings v. Heckler, 601 F. Supp. 919, 921-22
(N.D. Ill. 1985) (citing Carter v. Heckler, 712 F.2d 137, 142 (5th Cir. 1983)).
The court rejects Ms. Porter’s assertion that the ALJ improperly applied the
doctrine of res judicata to her claim. Instead, the record shows her second
claim was processed in the usual manner.
c.

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

Aside from res judicata, Ms. Porter alleges the ALJ should have
determined her disability onset date by evaluating three factors:
(1) Ms. Porter’s statements as to when her disability began, (2) the work
history, and (3) the medical evidence. See Docket No. 21 at p. 1 (citing POMS,
HALLEX and SSR 83-20). This is the analysis which would apply if Ms. Porter

This is apparent from the fact that the first ALJ issued its decision June 4,
2013, and the vast majority of the medical records in the administrative record
post-date June 4, 2013.
67

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had never filed a prior application for benefits. Of these three factors, the
Commissioner’s policy guidance identifies the medical evidence as “the primary
element in the onset determination.” See SSR 83-20. Ms. Porter asserts she
submitted new material evidence of failure of numerous conservative treatment
attempts, leading to the lumbar fusion in February, 2015. Even if one applies
these 3 factors rather than using the day after the first ALJ’s decision as
directed by § 404.620, the ALJ’s determination of June 5, 2013, as the
disability onset date is supported by substantial evidence.
First, Ms. Porter’s own statements are a mixed bag and do not point to a
single date. In a disability report September 25, 2013, Ms. Porter did indeed
state that she became unable to work on September 1, 2011. AR233.
However, in her disability application dated August 27, 2013, she stated she
was unable to work because of her disabling condition on June 5, 2013.
AR212, 214. At the ALJ hearing, the ALJ asked Ms. Porter’s lawyer
(Ms. Porter’s authorized agent) whether he agreed that the alleged onset date
was June 5, 2013, the day after the previous ALJ had issued his decision.
AR60. The attorney stated he agreed with that date. Id. Ms. Porter testified at
the ALJ hearing she had last worked full time in 2012. AR64. When her
lawyer asked her if she meant to say 2010, she responded, “yeah, somewhere
in there.” AR64. The year 2010 is not borne out by the work records, nor is
the year 2012.
The second factor, the work history, does support an alleged onset date
of September 1, 2011. AR221. Ms. Porter’s earnings records show earnings up
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through 2011; then there is a gap until 2014 when she earned $1,154, which
is not at the SGA level. Id. There were no earnings in the record after this.
Third, the medical and other evidence—the primary factor--is notable in
that the evidence Ms. Porter alleges is “new and material” is largely after the
alleged onset date of June 5, 2013. The lumbar fusion occurred in February,
2015, for example. AR874-79. The only medical evidence prior to June 5,
2013, does not concern Ms. Porter’s lumbar spine or hip. There is a disputed
statement of fact that Ms. Porter had a cervical imaging series which showed
straightening of the cervical spine and degenerative changes at C5-C6.
AR776-77. Then there are a series of medical appointments in March, April,
and May, 2013, where Ms. Porter complained of left knee pain and received
injections for the same. AR564-65, 823-25. Then there are two medical
records, one in April and one in May, 2013, regarding complaints of depression
and seeking help for smoking cessation. AR561-62, 563-64.
This constitutes the entirety of the pre-June 5, 2013, medical evidence in
the record. It does not show, as Ms. Porter claims, “failure of numerous
conservative treatment attempts, which failure led to lumbar fusion in
February 2015.” See Docket No. 21 at p. 2. All those conservative treatment
attempts with regard to Ms. Porter’s back and the eventual lumbar fusion are
documented in medical records after June 5, 2013. See e.g. AR316, 319, 32628, 331, 338, 360, 362-64, 366-67, 372, 374-75, 386-87, 433-35, 438, 441,
462, 486-88, 490-500, 502-06, 508-09, 518-23, 526, 531, 557-58, 722-23,
758, 802, 806-11, 883-84, 906-07, 911-12, 922 (medical records concerning
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back/hip issues from August, 2013, to December, 2014). None of the pre-June
5, 2013, medical records have anything to do with Ms. Porter’s lumbar spine
condition. See AR561-62, 563-64, 564-65, 823-25, 776-77.
If the ALJ had considered an onset date of September 1, 2011, there was
precious little information to go on. From this perspective, the court cannot
see how the ALJ’s purported error in failing to consider an earlier onset date
prejudiced Ms. Porter because the pre-June 5, 2013, evidence in this record
would not have established she was disabled prior to that date. Therefore,
even applying the three-factor test Ms. Porter urges should have been applied,
the ALJ’s determination of June 5, 2013, as the disability onset date is
supported by substantial evidence.
E.

Did the ALJ Err at Step Two in Determining Severe Impairments?
Ms. Porter asserts error at step two. She states the ALJ should have

found the following conditions to also be medically determinable severe
impairments: (1) mental impairments, (2) left knee, (3) sacroiliitis, and
(4) myofascial pain syndrome. The Commissioner alleges any error at step two
was harmless because the ALJ continued on with the analysis through steps
three through five and considered all of Ms. Porter’s impairments at these latter
stages. Ms. Porter alleges the ALJ’s step two error was not harmless precisely
because the ALJ did not consider the four conditions listed above at steps four
and five.

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1.

Applicable Law and ALJ Findings

It is the claimant’s burden to demonstrate a severe medically
determinable impairment at step two, but that burden is not difficult to meet
and any doubt about whether the claimant met her burden is resolved in favor
of the claimant. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir. 2001); and Dewald v. Astrue, 590 F.
Supp. 2d 1184, 1199 (D.S.D. 2008) (citing SSR 85-28). An impairment is not
severe if it does not significantly limit the claimant’s physical or mental ability
to do basic work activities. See 20 C.F.R. § 404.1522(a). Basic work activities
include, but are not limited to: walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, handling, seeing, hearing, speaking, use of
judgment; responding appropriately to supervisors and co-workers and usual
work situations, dealing with changes in a routine work setting, and
understanding, carrying out, and remembering simple instructions. Id. at (b).
Whether failure to identify a severe impairment at step two is harmless
error or grounds for reversal is a murky issue in the Eighth Circuit. In Nicola
v. Astrue, 480 F.3d 885, 886-87 (8th Cir. 2007), the claimant alleged the ALJ
failed to identify a severe impairment of borderline intellectual functioning at
step two. The Eighth Circuit noted when such a diagnosis is supported by
sufficient medical evidence, it should be considered severe. Id. The court held
the ALJ’s failure to identify the impairment as severe was not harmless error.
Id. The court reversed and remanded the case to the commissioner for further
proceedings. Id.
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As noted in Lund v. Colvin, 2014 WL 1153508 (D. Minn. Mar. 21, 2014),
the district courts within the Eighth Circuit are not in agreement about the
holding of Nicola. Some courts have interpreted it to mean that an ALJ’s
erroneous step-two failure to include an impairment as severe warrants
reversal and remand, even when the ALJ found other impairments to be severe
and therefore continued the sequential analysis. See Lund 2014 WL 1153508
at *26 (gathering cases). Other courts have declined to interpret Nicola as
establishing a per se rule that any error at step two is reversible error, so long
as the ALJ continues with the sequential analysis. Id. The central theme in
the cases which hold reversal is not required is that “an error at step two may
be harmless where the ALJ considers all of the claimant’s impairments in the
evaluation of the claimant’s RFC.” Id.
More recently, this district court has interpreted Nicola to require
reversal for failure to properly identify a severe impairment at step two, when
that impairment is diagnosed and properly supported by sufficient medical
evidence. See Quinn v. Berryhill, 2018 WL 1401807 at *6 (D.S.D. Mar. 20,
2018) (error at step two not harmless where ALJ failed to identify medically
determinable impairments). In Quinn the court acknowledged the district
court split within the Eighth Circuit as described in Lund, but decided that in
Quinn’s case, the error was not harmless. Id. at p. 14.

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2.

Mental Impairment

Ms. Porter alleged she was impaired due in part to depression. AR23132. The ALJ did not find Ms. Porter had any severe mental impairments at
step two. AR16-17. Ms. Porter alleges this was error.
A DDS non-examining psychologist, Junko McWilliams, Ph.D., rendered
an opinion on Ms. Porter’s mental impairments, concluding she suffered from
affective disorder/depressive disorder and that it constituted a severe
impairment, but was well-controlled by medication. AR97-105. Another DDS
non-examining psychologist, Mark Berkowitz, Psy.D., also opined Ms. Porter’s
mental impairments were severe and concluded she had mild restrictions of
activities of daily living and social functioning, and moderate difficulties with
concentration, persistence, or pace and no episodes of decompensation of
extended duration. AR131-42.
These opinions from Dr. McWilliams and Dr. Berkowitz are the only
opinions from qualified mental health professionals in the record and both
agree she had a severe mental impairment. The ALJ accorded “little weight” to
these opinions. AR17. The step two issue as to Ms. Porter’s mental
impairments, therefore, depends very much on whether the ALJ was justified
in according “little weight” to these professionals’ opinions.
Medical opinions are considered evidence which the ALJ will consider in
determining whether a claimant is disabled, the extent of the disability, and the
claimant’s RFC. See 20 C.F.R. § 404.1527. All medical opinions are evaluated
according to the same criteria, namely:
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--whether the opinion is consistent with other evidence in
the record;
--whether the opinion is internally consistent;
--whether the person giving the medical opinion examined
the claimant;
--whether the person giving the medical opinion treated the
claimant;
--the length of the treating relationship;
--the frequency of examinations performed;
--whether the opinion is supported by relevant evidence,
especially medical signs and laboratory findings;
--the degree to which a nonexamining or nontreating
physician provides supporting explanations for their
opinions and the degree to which these opinions
consider all the pertinent evidence about the claim;
--whether the opinion is rendered by a specialist about
medical issues related to his or her area of specialty;
and
--whether any other factors exist to support or contradict the
opinion.
See 20 C.F.R. § 404.1527(c)(1)-(6); Wagner v. Astrue, 499 F.3d 842, 848 (8th
Cir. 2007).
“A treating physician’s opinion is given controlling weight ‘if it is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.’ ”
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quoting Reed, 399 F.3d at
920); 20 C.F.R. § 404.1527(c). “A treating physician’s opinion ‘do[es] not
automatically control, since the record must be evaluated as a whole.’ ” Reed,
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399 F.3d at 920 (quoting Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)).
The length of the treating relationship and the frequency of examinations of the
claimant are also factors to consider when determining the weight to give a
treating physician’s opinion. 20 C.F.R. § 404.1527(c). “[I]f ‘the treating
physician evidence is itself inconsistent,’ ” this is one factor that can support
an ALJ’s decision to discount or even disregard a treating physician’s opinion.
House, 500 F.3d at 744 (quoting Bentley, 52 F.3d at 786; and citing Wagner,
499 F.3d at 853-854; Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir.
2005)). “The opinion of an acceptable medical source who has examined a
claimant is entitled to more weight than the opinion of a source who has not
examined a claimant.” Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006)
(citing 20 C.F.R. §§ 404.1527); Shontos v. Barnhart, 328 F.3d 418, 425 (8th
Cir. 2003); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998).
When opinions of consulting physicians conflict with opinions of treating
physicians, the ALJ must resolve the conflict. Wagner, 499 F.3d at 849.
Generally, the opinions of non-examining, consulting physicians, standing
alone, do not constitute “substantial evidence” upon the record as a whole,
especially when they are contradicted by the treating physician’s medical
opinion. Wagner, 499 F.3d at 849; Harvey v. Barnhart, 368 F.3d 1013, 1016
(8th Cir. 2004) (citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)).
However, where opinions of non-examining, consulting physicians along with
other evidence in the record form the basis for the ALJ’s decision, such a
conclusion may be supported by substantial evidence. Harvey, 368 F.3d at
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1016. Also, where a nontreating physician’s opinion is supported by better or
more thorough medical evidence, the ALJ may credit that evaluation over a
treating physician’s evaluation. Flynn v. Astrue 513 F.3d 788, 792 (8th Cir.
2008)(citing Casey, 503 F.3d at 691-692). The ALJ must give “good reasons”
for the weight accorded to opinions of treating physicians, whether that weight
is great or small. Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008).
Here, the ALJ’s given reasons for according “little weight” to the opinions
of Dr. McWilliams and Dr. Berkowitz were fleeting and conclusory, contained in
the following two sentences:
There was no evidence that the claimant had any problems in this
area [maintaining concentration, persistence and pace]. She
reported that she took care of young children, could manage her
finances, follow instructions, read and did puzzles, and
examinations consistently showed that she her [sic] memory was
normal and she had no abnormalities in her thought content,
perception, or process (B3F/3; B9F/4; B16F/10, 15, 21, 23, 27;
B19F/7, 9, 45, 72; B25F/2).
AR17.
In this case, Dr. McWilliams and Dr. Berkowitz are the only acceptable
medical sources who are also mental health experts who have rendered
opinions as to Ms. Porter’s mental impairments. Ms. Porter’s caregivers at
Community Health do not constitute “acceptable medical sources” under the
Commissioner’s current regulations. An examination of the record, including
the exhibits specifically cited by the ALJ, reveal many records that do not
support the ALJ’s characterization of a conflict between the medical records
and the consulting mental health experts’ opinions. All but one of the records

101

cited by the ALJ are from Community Health (B3F, B9F, B16F, and B19F); the
one anomaly is a record from the emergency room at the hospital (B25F).
The Community Health records typically have two sections pertinent to
mental impairments; the two sections are labeled “psychological” and
“psychiatric.” The “psychological” section is where the caregiver recorded
symptoms such as depression, anxiety, anhedonia, insomnia, and emotional
lability. The content of the “psychological” section of each medical record
varied from one treatment date to the next.
The “psychiatric” section, however, was identical on each record and
consisted of the following passage repeated over and over:
Well groomed individual. Speech is well organized and articulate.
Seated comfortably, answers questions and readily divulges
information. Appropriate eye contact, and no abnormal
movements are noted. Appropriate affect. No abnormalities in
thought, content, perception or process noted.
See, e.g. AR560. It was apparently to this identical “psychiatric” section of the
records that the ALJ was citing since so many of the records cited by the ALJ
do not support the ALJ’s assertion when one reads the “psychological” portion
of the record.
The medical records concerning Ms. Porter’s mental impairments show
the following. The ALJ cited exhibit B16F/27, which was the second page of a
treatment note from April 25, 2013, containing the identical “psychiatric”
assessment recited above. See AR563-64. But page 1 of the April 25 treatment
record stated Ms. Porter came to the clinic complaining of moodiness and
anxiety issues and wanted to be evaluated for bipolar disorder. AR563.
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Ms. Porter described erratic moods and also complained of anhedonia and
social withdrawal. Id. Ms. Porter scored a 33 on Beck’s Depression
Inventory.68 Id. The caregiver, Jennifer Thielen, recorded that Ms. Porter
reported feelings of hopelessness. Id. The “psychological” portion of the
treatment note stated Ms. Porter exhibited high irritability, depression with
feelings of hopelessness, anhedonia and social withdrawal. Id. Ms. Porter was
prescribed Zyban (bupropion). Id.
On May 31, 2013, Ms. Porter had a follow-up appointment for her
depression medications. AR561-62. She had been taking Zyban for over a
month at this point and reported she did not think it was working well.
AR561. She reported crying frequently, being very irritable, and that her
moods were up and down. Id. The caregiver, Jennifer Thielen, recorded that
Ms. Porter was exhibiting signs of anxiety, high irritability, depression with
feelings of hopelessness, anhedonia, social withdrawal and loss of interest in
family and friends. Id. The “psychiatric” portion of the record contained the

The Beck Depression Inventory is a 21-item, self-reported rating inventory
that measures characteristic attitudes and symptoms of depression. See
www.apa.org/pi/about/publications/caregivers/practicesettings/assessment/tools/beck-depression.aspx, last checked April 26, 2018.
Each of the 21 listed symptoms is ranked by the patient from 0-3 with 0
meaning the symptom is absent and 3 meaning the symptom is severe. The
score on the inventory can range from a minimum of 0 to a maximum of 63,
with higher scores indicating greater symptom severity. A score above 20 is
indicative of depression. Scores of 0-13 indicate minimal depression; 14-19
mild depression; 20-28 moderate depression; and 29-63 severe depression. 66
Occupational Medicine 2016, at pp. 174-75, Oxford Academic, Oxford
University Press. See https://academic.oup.com/occmed/articlepdf/66/2/174/8703388/kqv087.pdf, last checked April 26, 2018.
68

103

identical block quote from above. AR562. Ms. Porter was told to continue
taking Zyban and an additional prescription for Viibryd was given. Id.
Six weeks later at a recheck on July 5, 2013, Ms. Porter reported her
mental health medications were “working wonderfully.” AR328. She scored an
11 on the Beck test. Id. For the next nine months, Ms. Porter had several
medication checks and she uniformly reported doing well on her current
mental health medications with minimal feelings of depression and with stable
mood. AR326, 362-63, 372, 473, & 475
The ALJ cited exhibit B16F/23 (AR560), which was page 2 of a treatment
note that began on AR559 and was dated May 23, 2014. Page 2 (page 23 of
exhibit B16F) contained the identical “psychiatric” assessment recited above.
But page 1 of the May 23 treatment note recorded that Ms. Porter was on this
occasion exhibiting high irritability, emotional lability, and depression. AR559.
On May 29, 2014, an exhibit cited by the ALJ, Ms. Porter told her
certified nurse practitioner, Kimberly Grimsrud, that she did not feel her
depression medications (Zyban and Viibryd) were working. AR471 (exhibit
B9F/4). CNP Grimsrud recorded that Ms. Porter was exhibiting high
irritability, emotional lability, and depression on this date. Id. Grimsrud
prescribed Abilify for Ms. Porter. Id. The “psychiatric” portion of the May 29,
2014, record contained the identical passage quoted above as to “well
groomed,” etc.
On October 30, 2014, a CNP student saw Ms. Porter. AR541-42.
Ms. Porter reported on this occasion that all her medications were working well
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and that she was not having any symptoms. Id. She reported having no
anxiety, no depression, and no sleep disturbances. Id. The student
recommended Ms. Porter be referred to a mental health counselor for
depression, a recommendation Ms. Porter does not appear to have taken. Id.
Six months later on April 7, 2015, Ms. Porter reported at a recheck
appointment that her antidepressants were working for her. AR630.
Six weeks later, on May 12, 2015, Ms. Porter went to the emergency
room with racing heart symptoms. AR851, 629. She had lately been battling
COPD issues. The staff treated her with a nebulizer treatment and a Xanax
tablet, after which her heart rate calmed down. Id. The emergency room
physician, Dr. Donald Neilson, recorded clinical impressions of palpitations
and anxiety. AR853.
Another exhibit cited by the ALJ was B19F/9 (AR629), which was a
follow-up visit at the clinic on May 13, 2015, after the above-described
emergency room visit the night before. Ms. Porter described not being able to
turn off her mind. AR629. Caregiver Kimberly Grimsrud recorded that
Ms. Porter exhibited high anxiety and emotional lability on this visit. Id.
On August 7, 2015, at a medicine check appointment, Ms. Porter
reported feeling “a lot of anxiety” and that she had “difficulty sleeping due to
anxiety.” AR623-24. She stated could not afford Alprazolam (aka Xanax), so

105

she asked for a replacement anxiety drug. Id. She received new prescriptions
for amitriptyline, Wellbutrin, Lyrica, and Buspirone.69 Id.
Ms. Porter repeated her request for a Xanax replacement on October 14,
2015. AR943-44. New prescriptions for Effexor and Vistaril were instituted.
AR944. Xanax and Wellbutrin (aka Zyban, aka buproprion) were discontinued.
Id.
To be fair, a few of the record citations by the ALJ do, on those
occasions, show Ms. Porter was not experiencing any anxiety, depression,
insomnia or emotional lability. See, e.g. Exhibit B3F/3 (AR326); B16F/10
(AR547); B16F/15 (AR551-52); and B19F/7 (AR626). It is striking, though,
that so many of the exhibits cited by the ALJ as being contrary to the opinions
of Dr. McWilliams and Dr. Berkowitz actually support rather than contradict
those opinions.
Other evidence in the record aside from medical evidence is summarized
as follows. At the hearing before the ALJ on December 30, 2015, Ms. Porter
testified that sometimes her pain or her depression made her feel like not
leaving her house. AR73. She acknowledged she took mental health
medications and that they helped with her depression and anxiety some days.
AR76-77. The remainder of Ms. Porter’s 26 pages of testimony regarded her

Ms. Porter had previously received prescriptions for these drugs at different
times, but was apparently not taking them as of August 7, 2015. Compare list
of medications at the beginning of appointment, AR623, with list of
medications going forward at the end of the appointment, AR624.
69

106

lower body physical impairments (lumbar spine, hip, and left knee) and her
COPD and the effect those impairments had on her functioning. AR62-88.
Her September 25, 2013, disability report stated that depression affects
her motivation and concentration, and that she could not handle stress or
changes in routine. AR245, 262-63. Ms. Porter repeatedly stated her
antidepressant medications worked well in controlling her mental symptoms.
AR76-77, 245, 328, 326, 473, 475, 541-42, & 630. But there were many other
times she experienced significant symptoms despite taking mental health
medications. AR471, 560-62, 623-24, 629, and 851. It is more the usual
course than not for mental impairments to wax and wane and the ALJ must
take this into consideration. Nowling v. Colvin, 813 F.3d 1110, 1123-24 (8th
Cir. 2016). The whole of the record evidence supports, rather than contradicts,
the opinions of both Dr. McWilliams and Dr. Berkowitz that Ms. Porter suffered
from a severe mental impairment.
The court places little to no credence on the identical “psychiatric”
portion of each Community Service treatment record. This recitation appears
to be a rote electronic entry routinely made and not tailored to circumstances
presented. Even if one were to assume that “psychiatric” recitation was an
individual assessment of Ms. Porter’s condition at each clinic visit, all that can
be concluded from it was that Ms. Porter was not hallucinating and was
otherwise in touch with reality. Mental impairments take many forms. The
fact that a claimant is not psychotic does not equate with a conclusion that the
claimant suffers from no mental impairments.
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Nor can the court conclude that the ALJ’s recitation of Ms. Porter’s
activities of daily living are contrary to the opinions of Dr. McWilliams and
Dr. Berkowitz. Particularly troublesome is the ALJ’s assertion that Ms. Porter
cared for “young children” as part of her daily activities. The record reflects
Ms. Porter had one “child,” a young man of 17 years, who did a significant
amount of household work for Ms. Porter. Her “care” of the 17-year-old
consisted of waking him up in the morning and driving him to school most
days except when Ms. Porter was unable to drive due to her impairments.
AR258.
Her past work experience included providing child day care services up
to the year 2011, including a non-SGA work attempt in 2012. But Ms. Porter’s
earliest recorded medical record documenting her mental impairments is April,
2013. Thus, she never cared for “young children” at any time when the record
indicates she was suffering mental impairments.
Given the totality of the record, the court concludes the ALJ erred when
it held Ms. Porter’s mental impairments were not a severe impairment at step
two. As noted above, the showing required at step two is not an onerous one.
The only opinions in the record from qualified mental health professionals
concluded that Ms. Porter did have a severe mental impairment. And the
records from her treating caregivers (non-accepted medical sources) are
consistent with those opinions. Furthermore, Ms. Porter’s daily activities do
not preclude a finding of a severe mental impairment at step two. Finally, it is
not “harmless error” for the ALJ to have failed to consider mental impairments
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severe at step two because those impairments do not show up anywhere in the
ALJ’s RFC formulation, as discussed subsequently in this opinion. Nicola, 480
F.3d at 887. The court will remand for the ALJ to reconsider its step two
conclusions as to whether Ms. Porter’s mental impairments were severe.
3.

Left Knee

Remembering that the earliest possible disability onset date for this,
Ms. Porter’s second disability application, is June 5, 2013, the court examines
the records related to her left knee. Ms. Porter experienced chronic pain in her
left knee following surgery in 2008. Her pain was substantiated by crepitance
and a positive grind test as well as x-rays showing degenerative changes in the
patellofemoral joint and mild medial joint space narrowing. AR821. In the fall
of 2013, she was documented to have impaired strength in both flexion and
extension of her left knee. AR409. Ms. Porter underwent physical therapy,
injections of cortisone, and took pain medication. See, e.g. AR414-15, 417,
419, 421, 423, 818, 821-22. She described her knee pain as “markedly better”
following injections, but the pain eventually recurred. See, e.g. AR820. On
November 27, 2013, following physical therapy and left knee injections,
Ms. Porter reported she experienced significant pain ascending and descending
stairs, she could not walk more than 5 minutes without experiencing
significant pain, and she could not squat without pain. AR511-12. Because
Ms. Porter was not making any progress with her knee in physical therapy, she
was discharged. Id.

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On January 24, 2014, Ms. Porter reported she had been using a TENS
unit on her knee, had been doing physical therapy, and had gotten a round of
knee injections, all of which she said controlled her symptoms. AR812.
Objectively, her tenderness involving the knee was markedly improved. Id.
Ms. Porter was instructed to continue with home exercises and the TENS unit.
Id. She was also told she could receive another series of knee injections in May
or June if the pain recurred. Id.
On September 24, 2014, Ms. Porter reported knee pain, but said it was
not emanating from the knee joint, but rather seemed to emanate from her
lumbar spine and radiate down her leg. AR810. The doctor agreed that the leg
pain was radicular (it was radiating from the back), not originating in the knee
itself. AR810-11. Other medical records also suggest Ms. Porter’s knee pain
might at times be caused or impacted by the bulging disc in her lumbar spine.
AR814.
Ms. Porter reported to her physical therapist on May 18, 2015, post-back
surgery that she continued to experience left knee pain. AR618. However, her
knee extension and flexion strength were normal on May 18, 2015, at the
beginning of her physical therapy. Id. Ms. Porter received physical therapy
from May 18, 2015, to July 20, 2015, and her knee strength continued to be
normal through the end of her round of therapy. AR577, 619. Unlike the first
therapy visit, there is no record Ms. Porter complained of left knee pain on any
of her other 15 physical therapy visits over these two months. AR576-617.

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Her physical therapy during this two-month span included squats on a
stability wall for sit-to-stand training. AR577-609.
After the ALJ hearing, Ms. Porter submitted to the Appeals Council an
MRI of her left knee taken on January 17, 2017. AR8. This MRI showed
similar degenerative changes to the knee and involvement of the patellofemoral
joint. AR8. However those conditions were also documented in 2013. AR821,
825. The 2017 MRI did show fluid on the joint and a partial-thickness tear of
the distal biceps femoris tendon, which was not in the earlier images. AR8.
However, the inquiry is whether Ms. Porter was disabled at any time between
her onset date (June 5, 2013), and the date of the ALJ’s decision (January 22,
2016). The Appeals Council rejected the 2017 MRI because it did not
document conditions in Ms. Porter’s left knee during that relevant time frame.
AR2. The court agrees. The MRI is more than 1 year outside the relevant time
consideration and the new conditions (fluid and tear) could easily have
occurred outside the relevant time.
In summary, the record shows Ms. Porter was receiving intensive
treatment of her left knee in 2013. By January, 2014, she reported her
symptoms were controlled by a combination of home exercises, injections, and
the TENS unit. From January, 2014, to May, 2015, Ms. Porter never reported
any knee pain which she related to her knee joint and then there is only a
single such report—May 18, 2015. Although Ms. Porter received extensive
physical therapy between May 18, 2015, and July 20, 2015 (15 sessions), she
never again reported knee pain. Her strength in her knee for both flexion and
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extension were normal during this time period (AR577, 619), whereas in 2013
they had been impaired (AR409). Furthermore, the second half of her physical
therapy in 2015 included routinely doing wall squats. Ms. Porter points to the
November, 2013, record indicating she could not squat without pain and
argues the ALJ should have found her left knee condition was a severe
impairment at step two. The court cannot agree.
Although the November, 2013, records are indicative of a severe
impairment, the post-January, 2014, records substantially support the ALJ’s
conclusion the knee condition no longer interfered with daily activities. Indeed,
the almost complete absence of medical records relevant to the left knee after
January, 2014, supports this conclusion. An impairment must last for at least
12 months. See 20 C.F.R. § 404.1505(a). If Ms. Porter’s left knee condition
was a severe impairment from June 5, 2013, to November 24, 2013, it did not
last 12 months in the disability period under consideration. And although her
knee condition in general was a chronic condition, having lasted for many
years, it is not only the duration of the condition itself which the ALJ had to
consider, but the duration in which it was a severe impairment. Here,
substantial evidence in the record supports the ALJ’s step two decision that the
left knee was not a severe impairment during the period from June 5, 2013, to
December 30, 2015. Nevertheless, as discussed below, the ALJ was required to
consider any functional limitations imposed by Ms. Porter’s nonsevere knee
condition when formulating her RFC.

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4.

Sacroiliitis

Ms. Porter alleges the ALJ erred by not finding she suffered from the
severe impairment of sacroiliitis at step two. Sacroiliitis is inflammation of the
sacroiliac joint, the joint formed by the union of the sacrum and the ilium
(where the pelvis connects to the lower spine). See https://www.spinehealth.com/video-what-sacroiliitis, last checked April 26, 2018. “Itis” is a
Latin suffix that denotes inflammation, so patients with sacroiliitis usually
complain about pain in their buttocks or lower lumbar spine. Id. Prolonged
standing or stair climbing can worsen the pain. See
https://www.mayoclinic.org/diseases-conditions/sacroiliitis/symptomscauses/sys-20350747, last checked April 26, 2018. Sacroiliitis often results in
low back pain and pain that extends down one or both legs. Id. Sacroiliitis is
difficult to diagnose because it is often mistaken for other causes of low back
pain. Id. Chronic pain from sacroiliitis, as with chronic pain from any other
condition, can cause depression and insomnia. Id.
Dr. Woodruff mentioned a possible diagnosis of bilateral sacroiliitis on
October 24, 2014, when Ms. Porter revisited him after receiving conservative
treatment and feeling her pain was unimproved. AR806. She told
Dr. Woodruff she wanted surgery instead. Id. Instead of ordering surgery
immediately, Dr. Woodruff ordered bilateral sacroiliac joint injections to
determine if the source of Ms. Porter’s pain was indeed sacroiliitis. Id. He
noted that if the sacroiliac joint injections did not significantly relieve
Ms. Porter’s pain, he would have more confidence that the source of her pain
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was not sacroiliitis, but rather the degenerated disc at the L5-S1 level in her
spine. AR807.
On December 5, 2014, Dr. Anderson injected both of Ms. Porter’s
sacroiliac joints with steroids. AR804. Afterward, Ms. Porter reported to
Dr. Woodruff that she experienced only a 10 percent improvement in her pain
and only for 3-4 days after the injection. AR802. She continued to rate her
pain in her back and down her left leg as a 6-8 out of 10. Id. Based on this
trial injection, Dr. Woodruff rejected the possibility that the source of
Ms. Porter’s pain was sacroiliitis and instead settled “with confidence” on the
degenerated disc at the L5-S1 level as the source of Ms. Porter’s pain. Id.
Ms. Porter continued to insist on surgery and Dr. Woodruff agreed at this point
and put the wheels in motion for surgery to be scheduled. Id.
Based upon this sequence of events, this court concludes that Ms. Porter
never had sacroiliitis. Dr. Woodruff entertained that diagnosis as a possible
source of her low back and leg pain, instituted an experiment in the form of
sacroiliac joint injections to test his hypothesis, and as a result of that failed
experiment, excluded sacroiliitis as the source of Ms. Porter’s pain. AR802,
806-07. He instead settled “with confidence” on his conclusion that the source
of Ms. Porter’s pain was the degenerated disc at the L5-S1 level. AR302.
Based on this history in the administrative record, the ALJ did not err in failing
to find that sacroiliitis was one of Ms. Porter’s severe impairments at step two.
The court notes that the ALJ did find at step two that Ms. Porter suffered from
the severe impairment of left hip tendonitis. Therefore, this finding set the
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stage for consideration of hip impairments in formulating Ms. Porter’s RFC at
step four.
5.

Myofascial Pain Syndrome

Ms. Porter also alleges the ALJ failed to consider her myofascial
syndrome as a severe impairment at step two. Indeed, the ALJ never
mentioned myofascial syndrome—diagnosed by Dr. Cote--for good reason.
Ms. Porter never alleged she suffered from myofascial syndrome as a disabling
condition. She alleged impairments due to her lumbar disc disease, left knee,
left hip tendonitis, sacroiliac joints, a neuroma, depression and anxiety, acid
reflux, and COPD. See AR61, 232, 293-96. Even Ms. Porter’s present counsel,
when outlining Ms. Porter’s impairments before the agency, never identified
myofascial syndrome as an alleged impairment. See AR293-96. Furthermore,
although present counsel argued to the Appeals Council that the ALJ
overlooked certain impairments, counsel never alleged the ALJ overlooked
myofascial syndrome. AR302.
This administrative record contains the transcript from the ALJ hearing
Ms. Porter had on her first application for disability benefits which was denied
and never appealed. AR30-54. Although Dr. Cote is mentioned several times
in the transcript, it is never discussed that Dr. Cote diagnosed Ms. Porter with
myofascial syndrome. Id. Furthermore, the only impairments Ms. Porter
alleged were her lower back condition and her left knee—she did not allege
myofascial syndrome as an impairment even in her first application. See
AR32-33, 45.
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The sole mention of myofascial syndrome in the administrative record is
an August 23, 2013, record from Dr. Christina Cote. AR316-23. Ms. Porter
saw Dr. Cote on this occasion complaining of chronic left hip and left low back
pain over the last 8 months. AR318. Ms. Porter described that she had
recently moved into a new house and had been busy unpacking and cleaning,
including mopping, which made her pain worse. Id. She described the pain
lasting for up to 4 days if she overdid it. Id. Examination of Ms. Porter’s back,
including low back, by Dr. Cote revealed no tenderness, spasms, or bony
abnormalities and, contradictorily, no pain. AR319. Dr. Cote diagnosed
myofascial pain syndrome and prescribed Pennsaid topical drops and
nortriptyline to be taken once a day at bedtime for 90 days. Id.
Myofascial pain syndrome is chronic pain where trigger points in the
patient’s muscles cause pain in the muscle. See
https://mayoclinic.org/diseases-conditions/myofascial-painsyndrome/symptoms-causes/sys-20375444, last checked April 25, 2018. The
syndrome typically occurs after a muscle has been contracted repetitively or
injured. Id. Discogenic pain, diagnosed by Dr. Woodruff, is pain originating
from a damaged vertebral disc, particularly due to degenerative disc disease.
See https://spine-health.com/glossary/discogenic-pain, last checked April 25,
2018. Thus, both Dr. Cote and Dr. Woodruff were addressing Ms. Porter’s
complaints of low back pain radiating into her legs. Dr. Woodruff believed it to
originate from degenerating vertebral discs (AR799), and Dr. Cote believed it to
originate from trigger points in Ms. Porter’s back muscles (AR319). Both
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physicians documented and diagnosed lower back pain radiating into hips and
legs.
The ALJ was not tasked with resolving which medical explanation for
Ms. Porter’s back pain was most persuasive, but rather with determining
whether that condition—by whatever name—constituted a severe impairment.
When the ALJ determined that Ms. Porter had a severe impairment of
degenerative disc disease, in this court’s assessment, that included both the
diagnosis of discogenic pain and the diagnosis of myofascial pain as both were
explanations or labels for Ms. Porter’s low back and hip/leg pain. The ALJ did
not err by failing to also find myofascial pain syndrome to be a severe
impairment at step two.
F.

Did the ALJ Fail to Develop the Record as to Pulmonary and
Psychological Impairments?
Ms. Porter alleges the ALJ failed to develop the record in several ways.

First, she alleges 20 C.F.R. § 404.1512(b) required the ALJ to obtain 12
months’ worth of medical records prior to the date she applied for disability
benefits (August 27, 2013). Because the record contains records going back
only to February, 2013, Ms. Porter alleges the ALJ did not fulfil its duty.
She also alleges that the ALJ should have developed the record by
ordering consultative examinations to assess her mental impairments and her
COPD. With regard to the mental impairments, Ms. Porter notes that the
medical records regarding her depression and anxiety were authored by
physician assistants or certified nurse practitioners, while the Commissioner’s
regulations, 20 C.F.R. § 404.1513, require mental diagnoses to be rendered by
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licensed physicians and psychologists. Here, Ms. Porter asserts the record
established mental and pulmonary impairments, but no diagnoses. She argues
the ALJ should have ordered consultative exams to develop the diagnostic
evidence.
1.

Duty to Obtain 12 Months’ of Pre-Application Records

First, as to the argument that the ALJ should have obtained medical
evidence dating back to August, 2012, § 404.1512(b) states the Commissioner
will, before making a determination as to disability, obtain the claimant’s
complete medical history for at least 12 months preceding the month in which
application was made, unless the claimant alleges her disability began less
than 12 months before the filing date. See 20 C.F.R. § 404.1512(b)(1). Here,
as the court discussed above, when Ms. Porter chose to reapply for benefits
rather than pursue an appeal of the denial of benefits on her first application,
the consequence of that choice was that she was “stuck” with a disability onset
date of June 5, 2013. Therefore, the “unless” clause from § 404.1512(b)(1) is
operative here—Ms. Porter alleged a disability onset date of June 5, 2013,
which is less than 12 months before the August, 2013, filing date.
When the claimant alleges in a disability application that she became
disabled less than 12 months prior to her application--such as in this case--the
Commissioner’s duty is to “develop your complete medical history beginning
with the month you say your disability began unless we have reason to believe
your disability began earlier.” See 20 C.F.R. § 404.1512(b)(1)(ii). Here, by
operation of law (§ 404.620), Ms. Porter alleged her disability began on
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June 5, 2013. The ALJ had a duty to obtain medical records dating back to
June 5, 2013. The ALJ did not have reason to believe her disability began
earlier because there was a final decision from another ALJ on June 4, 2013,
that was not appealed which held Ms. Porter was not disabled. Therefore, the
ALJ’s duty to develop the record in terms of obtaining past medical records
dates back to June 5, 2013, the alleged date of onset. Here, the ALJ fulfilled its
duty because there are medical records dating back to February, 2013.
2.

Consultative Examination on Mental Impairments

The duty of the ALJ to develop the record—with or without counsel
representing the claimant--is a widely recognized rule of long standing in Social
Security cases:
Normally in Anglo-American legal practice, courts rely on the rigors
of the adversarial process to reveal the true facts of the case.
However, social security hearings are non-adversarial. Well-settled
precedent confirms that the ALJ bears a responsibility to develop
the record fairly and fully, independent of the claimant’s burden to
press his case. The ALJ’s duty to develop the record extends even
to cases like Snead’s, where an attorney represented the claimant
at the administrative hearing. The ALJ possesses no interest in
denying benefits and must act neutrally in developing the record.
Snead, 360 F.3d at 838 (citations omitted). See also Johnson v. Astrue, 627
F.3d 316, 319-20 (8th Cir. 2010) (ALJ has a duty to develop the record even
when claimant has counsel); and 20 C.F.R. § 404.1512(b). If the record is
insufficient to determine whether the claimant is disabled, the ALJ must
develop the record by seeking additional evidence or clarification. McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011).

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However, this is true only for “crucial” issues. Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005). A claimant must show that the ALJ’s failure to
fully develop the record resulted in prejudice to her before remand will be
warranted. Id. Where the failure to develop concerns a “central and potentially
dispositive issue” which the ALJ failed to explore, remand is required. Snead,
360 F.3d at 839. But the ALJ’s “duty is not never-ending and an ALJ is not
required to disprove every possible impairment.” McCoy, 648 F.3d at 612.
The ALJ may exercise its duty to develop the record in numerous ways,
such as requesting medical records in existence but not yet part of the
administrative record. Another specific tool available to the ALJ to develop the
record is the consultative exam—an exam at the Commissioner’s expense with
a professional of the Commissioner’s own choosing. 20 C.F.R. § 404.1512(b)(2).
The Commissioner has promulgated numerous regulations relating to the
consultative exam. See e.g. 20 C.F.R. §§ 404.1512(b)(2), 404.1518 – 404.1519j.
The ALJ “may” decide to purchase a consultative exam when the
information the ALJ needs cannot be obtained from the claimant’s medical
sources and one of the following circumstances is present: (1) the additional
evidence is not contained in the records before the agency, (2) the evidence
cannot be obtained from the claimant’s treating sources for reasons beyond the
claimant’s control, (3) highly technical or specialized knowledge needed by the
ALJ is not available from treating sources, or (4) there is an indication the
claimant’s condition has changed in a way likely to affect the severity of the

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impairment, but the change in condition is not established in the records
before the agency. See C.F.R. § 404.1519a.
Ms. Porter alleges a consultative exam was required pursuant to
§ 404.1519a(b)(1)—in order to supply the diagnosis necessary for a decision.
She further asserts, relying on Byes v. Astrue, 687 F.3d 913 (8th Cir. 2012),
and Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), that the Commissioner was
required to have that diagnosis rendered by an examining psychologist or
psychiatrist. Since neither Dr. McWilliams nor Dr. Berkowitz examined
Ms. Porter, and since no other diagnosis exists in the record from an examining
psychologist or psychiatrist, Ms. Porter alleges the ALJ erred by not ordering a
consultative exam.
In Byes, the issue on appeal was whether the ALJ’s determination that
Byes did not suffer from a severe mental impairment was supported by
substantial evidence in the record. Byes, 687 F.3d at 916. A licensed
psychologist examined Byes at the request of the ALJ and suspected, but did
not substantiate, diagnoses of borderline intellectual functioning or learning
disabilities. Id. The Eighth Circuit affirmed the denial of benefits because
Byes’ job requirements over a period of many years belied an intellectual
impairment severe enough to render Byes unable to work and because Byes’
activities of daily living showed his impairment, if any, did not preclude work.
Id. Specifically, Byes held jobs that required him to write reports and use
technical skills, he was able to pay his bills, count change, handle his own
finances, maintain a large garden, and work as a carpenter and mechanic. Id.
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The Byes court distinguished Byes’ case from Dozier v. Heckler, 754 F.2d
274 (8th Cir. 1985), and Gasaway v. Apfel, 187 F.3d 840 (8th Cir. 1999).70
Byes, 687 F.3d at 917. In Dozier, there was little evidence of a specific
condition available to the ALJ, causing the court to reverse and remand. Id.
(citing Dozier, 754 F.2d at 275-76). In Byes’ case, the evidence of Byes’ work
and daily activities was substantial and was contrary to a finding of a severe
mental impairment. Id.
In Gasaway, there was “ample unequivocal” evidence that Gasaway
suffered from mental retardation, had a verbal IQ of 69, and attended special
education classes in school. Id. (citing Gasaway, 187 F.3d at 843). This
caused the Eighth Circuit to reverse and remand for further development of the
record as to Gasaway’s intellectual impairment where the ALJ gave no
indication that it “evaluated and rejected, or even noticed, the possibility that
Ms. Gasaway might be mentally impaired in some way.” Id. The court
contrasted the ample and unequivocal evidence from Gasaway with the
suspicion, but not confirmation, of the existence of a mental impairment in
Byes’ case. Id.
The other case relied upon by Ms. Porter, Nevland, involved a former
postal worker who alleged disability, in part, on mental impairments described
variously as dysthymia, major depression, adjustment disorder, anxiety, panic
disorder, obsessive compulsive disorder, and attention deficit hyperactivity
The Byes court also distinguished a third case, Thompson v. Sullivan, 878
F.2d 1108 (8th Cir. 1989), as completely inapplicable because the primary
issue in that case had to do with SGA. Byes, 687 F.3d at 916-17.
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disorder. Nevland, 204 F.3d at 854. There were numerous treatment records
in the administrative record from Nevland’s therapist and mental health doctor,
including descriptions of counseling sessions and medications prescribed. Id.
at 854-55. Nontreating nonexamining consultants had reviewed Nevland’s
medical records and opined as to his mental RFC, but none of Nevland’s
caregivers had rendered opinions about Nevland’s ability to function in the
workplace. Id. at 858. The court, noting that usually opinions of nontreating
nonexamining doctors do not constitute substantial evidence, reversed and
remanded with instructions to obtain a mental RFC opinion from Nevland’s
treating physicians or to obtain a consultative psychiatric or psychological
exam as to Nevland’s mental RFC. Id.
Ms. Porter insists that Byes and Nevland stand for the iron-clad
proposition that there must always be a diagnosis from a qualified examining
psychologist or psychiatrist when a mental impairment is alleged. The court
does not read those cases to stand for that proposition. Even Nevland, which
remanded because no treating doctor rendered an opinion as to mental RFC,
qualified its statement by the adverb “usually.” Nevland, 204 F.3d at 858.
This court reads Nevland, Byes, Gasaway, and Dozier to stand for the
proposition that further development of the record is required where there is
insufficient medical and other evidence from which to formulate an RFC;
further development is not required where there is sufficient evidence to render
an opinion as to RFC.

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Here, there is a treatment record from one physician—an accepted
medical source (the May visit to the emergency room for racing heartbeat
symptoms)—diagnosing possible anxiety disorder. There are also extensive
records from Community Health detailing Ms. Porter’s mood, affect,
medications, and functioning. There is also extensive information about
Ms. Porter’s activities of daily living in the record. And there are the opinions
from the nontreating nonexamining doctors McWilliam and Berkowitz.
However, as in Nevland, there is no treating source opinion as to Ms. Porter’s
mental RFC.
The regulations regarding consultative exams use the word “may.” 20
C.F.R. §§ 404.1517, 404.1519a. Thus, even if the stated circumstances
justifying a consultative exam are present, the ALJ “may,” but is not required
to, conduct a consultative exam. Id. Even in the Gasaway case, the court
merely remanded with instructions to “further develop the record” as to
Gasaway’s mental impairment; the court did not specifically require the ALJ to
purchase a consultative exam. Gasaway, 187 F.3d at 844. Likewise, the
Nevland court did not mandate a consultative exam, but also left open the
possibility of obtaining an RFC opinion from one of Nevland’s treating doctors.
Nevland, 204 F.3d at 858.
The question in this case is a close one. Were the issue of development
of the record on mental impairments a stand-alone issue, the court might not
remand. However, as noted above, the court has already concluded a remand
is necessary as to the step two issue regarding Ms. Porter’s mental
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impairments. The court rejects Ms. Porter’s invitation to remand with
instructions that the ALJ must purchase a consultative exam as to her mental
impairments, but it does remand. The ALJ should develop the record regarding
Ms. Porter’s mental RFC by obtaining a mental RFC opinion from one of her
medical care providers,71 or by other means, including purchasing a
consultative exam.
3.

Consultative Examination on COPD

The administrative record is replete with detailed records showing
Ms. Porter struggled with COPD and its effects on her functional abilities. The
first medical record documenting impaired breathing was February 3, 2014,
when Ms. Porter sought emergency room care for cough and congestion.
AR711. She was diagnosed with bronchitis and reactive airway disease and
prescribed an Albuterol inhaler, Phenergan with Codeine, and a 5-day dose of
Prednisone with Zithromax. Id. Reactive airway disease (RAD) is not a clinical
term and for that reason is somewhat controversial among medical
professionals. See https://healthline.com/health/reactive-airway-disease, last
checked April 24, 2018. RAD describes any one of a group of conditions,

Although the caregivers at Community Health are not “accepted medical
sources” (see 20 C.F.R. § 404.1502(a)), they are competent under the
Commissioner’s regulations and policy guidance to render opinions as to the
severity of Ms. Porter’s mental impairments and as to how those impairments
affect her ability to function. See SSR06-03p. This SSR was rescinded as of
March 27, 2017, but it remains applicable to claims such as Ms. Porter’s which
were filed prior to March 27, 2017. The court notes that SSR06-03p was fully
applicable also at the time the ALJ issued its decision on January 22, 2016.
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including COPD and asthma, that feature reversible airway narrowing due to
an external stimulation. Id.
On March 13, 2014, Ms. Porter again reported to the emergency room
with complaints of feeling weak, run down, persistent cough and persistent
problems breathing. AR704. Her lungs were clear, her chest x-ray negative,
and she responded well to a duo nebulizer. AR705, 708. Another chest x-ray
on March 29, 2014, showed no abnormalities. AR703.
On April 19, 2014, Ms. Porter went to the ER again with respiratory
complaints. AR693. She was diagnosed with acute bronchitis and tobacco
use. AR694. She was treated with an Albuterol inhaler, a cough medicine
(Tessalon Perles), and an antibiotic. AR693. On April 22, 2014, Ms. Porter
reported she was not feeling better. AR473. She was given a nebulizer
treatment and prescribed Prednisone and an Advair Diskus in addition to her
other respiratory medications. AR473-74. On May 13, 2014, she continued to
report a sore throat cough. AR560.
On June 8, 2014, Ms. Porter again went to the ER for several days of
worsening cough and other upper respiratory symptoms. AR915. She
exhibited pharyngeal erythema and bilateral rhonchi and wheezing. Id. A
chest x-ray was normal. AR916, 921. She was diagnosed with acute
bronchitis, acute bronchospasm, asthma exacerbation and ongoing tobacco
dependence. AR916. She was prescribed a Combivent inhaler. Id.

126

On June 14, 2014, Ms. Porter again went to the ER complaining of
coughing and back pain. AR911. She exhibited decreased breath sounds
bilaterally and was prescribed pain medication. Id.
On June 16, 2014, Ms. Porter saw a community health worker for cough,
body aches, chills, and fatigue, reporting that she was coughing up thick yellow
and green mucous. AR558. Although she reported her ER visit two weeks
earlier, the record is silent as to her ER visit two days before. Id. Ms. Porter
was running a fever on this occasion and auscultation (listening with a
stethoscope) revealed fine crackles anteriorly and diminished breath sounds in
the bases bilaterally. Id. Crackles are brief, discontinuous popping lung
sounds like wood burning in a fireplace and may indicate fluid or pulmonary
edema. See
https://www.easyauscultation.com/causes?coursecaseorder=2&coursed=201,
last checked April 24, 2018. She was diagnosed with simple bronchitis and
given Prednisone for 5 days and cough medicine. AR559. A check-up on June
30, 2014, indicated most of Ms. Porter’s respiratory issues had resolved.
AR555-56.
On July 9, 2014, Ms. Porter again saw community health workers for
bronchitis. AR553. She exhibited mild wheezing in her lungs. AR554. She
was again diagnosed with simple bronchitis. Id. Her inhalers, cough medicine,
and Prednisone were continued. AR555.
On July 22, 2014, Ms. Porter reported to the ER complaining of
shortness of breath. AR902, 905. Her lungs were clear on this occasion and
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her chest x-ray was normal. Id. On July 26, 2014, she again came to the ER
for coughing, wheezing and shortness of breath after being exposed to campfire
smoke while camping. AR894. She was again prescribed a Combivent inhaler,
Prednisone, and an antibiotic. AR895.
Two days later on July 28, 2014, she again sought medical care for
respiratory symptoms. AR552. She was diagnosed with obstructive chronic
bronchitis with acute bronchitis. AR553. Because she had been on antibiotics
and steroids since mid-May, the doctor recommended no further antibiotics or
steroids, but rather a complete blood count. Id. At this time, Ms. Porter
required 2-3 liters of oxygen at night and during daytime naps. Id.
Later that same day, Ms. Porter reported to the ER complaining of
shortness of breath and chest tightness. AR900-01. She exhibited diffuse
biphasic wheezing and was given two nebulizer treatments with significant
improvement. AR901. The diagnosis was bronchospasm and cough. Id.
The next day, July 29, Ms. Porter saw a health care worker for
medication follow-up. AR551. Laboratory studies were ordered which showed
elevated TSH (related to thyroid hormone) and vitamin D. AR568.
On August 27, 2014, Ms. Porter sought medical care for a migraine
headache and was not seeking care for respiratory symptoms. AR549-50.
However, her physical examination revealed diminished breath sounds and
scattered wheezes. Id. Similarly, on October 8, 2014, Ms. Porter sought
medical care for sudden weight gain, not respiratory symptoms, but her exam
revealed a few rhonchi in her lungs. AR547.
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On October 28, 2014, Ms. Porter had an appointment for a pap smear,
but also reported congestion in her chest. AR542. Exam revealed wheezing,
rhonchi, rales and crackles in her lungs. AR543.
On February 6, 2015, Ms. Porter had back surgery, after which she
developed postoperative pneumonia. AR872, 874. She told medical staff she
had COPD and could get wheezy and short of breath when she had an upper
respiratory infection. AR871. She had been given one nebulizer treatment and
had been on oxygen since the surgery. Id. Her oxygen saturation was 91
percent after 4 liters of oxygen. Id. She was nebulized every 4 hours while in
the hospital and given a bronchodilator. AR872. Two weeks post-surgery she
was still on supplemental oxygen. AR791. One week later, she reported she
would wake at night gasping for air. AR632-33. Her oxygen saturation level
was 94 percent on this date. AR633.
On March 20, 2015, Ms. Porter reported to community health with
shortness of breath. AR632. She was assessed with COPD. Id.
On May 12, 2015, Ms. Porter reported to the ER with symptoms of
intermittent heart racing over a two-week period. AR851. Her pulse rate was
98,72 her respiratory rate was 20, her blood pressure was 119/77, and her
oxygen saturation level was 97 percent. AR851-52. She was diagnosed with
palpitations and anxiety. Id. The next day, Ms. Porter followed up at

For the sake of reference, other records show Ms. Porter’s normal resting
pulse rate when she was not complaining of racing heartbeat was 82 beats per
minute. See AR318.
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community health and said her symptoms had resolved with a nebulizer
treatment and a Xanax tablet. AR629.
On June 2, 2015, Ms. Porter saw community health, reporting she had
gone to the ER the night before and was diagnosed with bronchitis and given
antibiotics and a steroid burst. AR627. She indicated her breathing was better
today. Id.
On June 5, 2015, Ms. Porter again reported to the ER for breathing
problems. AR845. Her pulse was 103,73 her respiratory rate 18, her blood
pressure was 121/50, and her oxygen saturation was 98 percent. Id. She
indicated she had been using inhalers with no relief. Id. She was treated with
a nebulizer and prednisone. Id.
On October 14, 2015, Ms. Porter was seen at community health and
complained of ongoing cough and wheezing, but said she had been taking
antibiotics and a Prednisone burst, which made her better. AR944.
On November 19, 2015, Ms. Porter reported to community health with
upper respiratory symptoms. AR940-41. Her oxygen saturation was 99
percent and her lungs were clear, but her respiration rhythm and depth were
moderately shallow. Id. She was assessed with COPD and given cough
medicine. Id.
On December 1, 2015, Ms. Porter reported congestion. AR946. Exam
revealed decreased breath sounds and wheezing. Id. She was assessed COPD
and given Cipro and a nebulizer machine. Id.

73

See Footnote 68, supra for Ms. Porter’s normal resting pulse rate.
130

In her disability reports, Ms. Porter primarily reported limitations linked
to pain, tingling, and numbness in her back and knee and postural limitations
due to her vertebral fusion. She did indicate she was limited to walking 5-10
minutes before resting due to her feet, back and knees, adding that if she
“pushes it” she might get “winded” and have to use her inhaler. AR262. She
also stated she was “home bound due to breathing issues” coupled with her
back, knee and hip pain. AR269.
The question before the court is: given the above extensive medical
records concerning Ms. Porter’s pulmonary health, what more information
would have been gleaned from ordering a consultative exam? Ms. Porter points
to the fact that her chest x-rays were “negative,” “normal,” and “clear” and her
oxygen saturation levels were normal. Ms. Porter appears to suggest that the
difficulty she described with breathing was really indicative of an undiagnosed
anxiety condition. Docket No. 19 at pp. 17-18 and 18 n.24.
The American Lung Association explains that COPD is primarily
diagnosed through the use of spirometry, a pulmonary function test. See
www.lung.org/lung-health-and-diseases/lung-diseaselookup/copd/diagnosing-and-treating/how-is-copd-diagnosed.html, last
checked April 24, 2018. This consists of having a patient blow through a
mouthpiece and tubing attached to a machine that measures the amount of air
the patient blows out and how fast it is blown. Id. Thus, x-rays and oxygen
saturation are not the primary methods of diagnosing COPD, though they are
secondary methods. Id. See also https://www.mayoclinic.org/diseases131

conditions/copd/diagnosis-treatment/drc-20353685. The Mayo Clinic
indicates COPD is commonly misdiagnosed. Id.
The ALJ found at step two that Ms. Porter’s COPD was a severe
impairment. AR17. The ALJ went on to hold that Ms. Porter’s COPD did not
meet or equal a listed impairment at step three. AR18. The ALJ characterized
this condition as undergoing exacerbations, but that between exacerbations,
Ms. Porter’s lungs were clear and her breathing unlabored. AR21. The ALJ
also noted Ms. Porter continued to smoke tobacco despite repeated and
frequent exhortations by numerous medical personnel to stop. Id. Ultimately,
the ALJ incorporated no functional restrictions in Ms. Porter’s RFC on account
of her COPD. AR18.
The court cannot say that the ALJ failed in its duty to develop the record
as to Ms. Porter’s COPD. The records reflect that Ms. Porter did experience
respiratory exacerbations, sometimes exacerbations that extended for several
months. But there were also months-long periods where she did not complain
of symptoms, did not seek treatment, and where exams showed her lungs were
clear. And Ms. Porter herself attributed little functional limitations to her
COPD, mentioning it only in passing. Given the discretionary nature of
consultative exams—the ALJ “may” order one even if circumstances exist
justifying an exam—the record is not such in this case that the court can say
the ALJ abdicated its duty to develop the record by failing to order a
consultative exam. Nor will the court mandate that the ALJ purchase a
consultative exam on remand.
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G.

Was the ALJ’s RFC Assessment Supported by Substantial Evidence?
Ms. Porter alleges the ALJ’s assessment of her RFC is not supported by

substantial evidence in the record for nine reasons:
1.

the ALJ failed to account for disrupted routine or absenteeism
from work that would result from physical therapy appointments.

2.

the ALJ failed to consider the loss of functional strength and
mobility throughout the lumbar and pelvic region preventing
regular activity as documented by physical therapists.

3.

the ALJ failed to consider the functional impact of Ms. Porter’s
COPD.

4.

the ALJ failed to consider the impact of documented knee arthritis
and iliotibial band pain.

5.

the ALJ failed to consider Ms. Porter’s myofascial syndrome
documented by Dr. Cote, whose records are not in the
administrative record.

6.

in discounting Ms. Porter’s reports of pain due to lack of objective
medical evidence, the ALJ failed to take into account
Dr. Woodruff’s statement that the MRI of Ms. Porter’s spine
supported a diagnosis of discogenic pain.

7.

the ALJ substituted its own opinion for that of the DDS
psychologists’ opinions that Ms. Porter was moderately impaired in
her ability to concentrate, persist, and pace herself.

8.

the ALJ failed to properly assess Ms. Porter’s psychological
limitations because there was no mental RFC from an examining
psychologist as required by Nevland.

9.

the ALJ improperly assigned great weight to the opinions of DDS
physicians as to Ms. Porter’s physical RFC.

The Commissioner responds that the mere existence of a diagnosis or
condition is not sufficient to support a corresponding limitation in RFC.
Rather, the Commissioner argues, RFC is a formulation reserved for the ALJ’s
exclusive province and it requires that functional limitations that arise from
133

impairments be considered. The Commissioner notes Ms. Porter’s assertion of
error does not state what additional functional limitations should have been
incorporated into her RFC. As to the absenteeism argument, the
Commissioner argues that brief medical appointments do not require
Ms. Porter to miss an entire day’s work. Regarding Ms. Porter’s COPD, the
Commissioner notes Ms. Porter did not follow the many medical
recommendations to quit smoking, thereby justifying the ALJ’s implicit
determination that her COPD was “something she could live with or [that] was
not debilitating.” See Docket No. 20 at p. 18. Furthermore, if a claimant’s
condition will improve by following a doctor’s recommendations or changing a
detrimental habit, the Commissioner asserts the claimant is not disabled. Id.
at p. 19.
1.

The Law Applicable to Formulation of RFC

Residual functional capacity is “defined as what the claimant can still do
despite his or her physical or mental limitations.” Lauer v. Apfel, 245 F.3d
700, 703 (8th Cir. 2001) (citations omitted, punctuation altered). “The RFC
assessment is an indication of what the claimant can do on a ‘regular and
continuing basis’ given the claimant’s disability. 20 C.F.R. § 404.1545(b).”
Cooks v. Colvin, 2013 WL 5728547 at *6 (D.S.D. Oct. 22, 2013). The
formulation of the RFC has been described as “probably the most important
issue” in a Social Security case. McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982), abrogation on other grounds recognized in Higgins v. Apfel, 222
F.3d 504 (8th Cir. 2000).
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When determining the RFC, the ALJ must consider all of a claimant’s
mental and physical impairments in combination, including those impairments
that are severe and those that are nonsevere. Lauer, 245 F.3d at 703; Social
Security Ruling (SSR) 96-8p 1996 WL 374184 (July 2, 1996). Although the
ALJ “bears the primary responsibility for assessing a claimant’s residual
functional capacity based on all the relevant evidence . . . a claimant’s residual
functional capacity is a medical question.”74 Lauer, 245 F.3d at 703 (citations
omitted) (emphasis added). Therefore, “[s]ome medical evidence must support
the determination of the claimant’s RFC, and the ALJ should obtain medical
evidence that addresses the claimant’s ability to function in the workplace.” Id.
(citations omitted).
“The RFC assessment must always consider and address medical source
opinions.” SSR 96-8p. If the ALJ’s assessment of RFC conflicts with the
opinion of a medical source, the ALJ “must explain why the [medical source]
opinion was not adopted.” Id. “Medical opinions from treating sources about
the nature and severity of an individual’s impairment(s) are entitled to special
significance and may be entitled to controlling weight. If a treating source’s
medical opinion on an issue of the nature and severity of an individual’s

Relevant evidence includes: medical history; medical signs and laboratory
findings; the effects of treatment, including limitations or restrictions imposed
by the mechanics of treatment (e.g., frequency of treatment, duration,
disruption to routine, side effects of medication); reports of daily activities; lay
evidence; recorded observations; medical source statements; effects of
symptoms, including pain, that are reasonably attributable to a medically
determinable impairment; evidence from attempts to work; need for a
structured living environment; and work evaluations. See SSR 96-8p.
74

135

impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record, the [ALJ] must give it controlling weight.” Id.
Ultimate issues such as RFC, “disabled,” or “unable to work” are issues
reserved to the ALJ. Id. at n.8. Medical source opinions on these ultimate
issues must still be considered by the ALJ in making these determinations. Id.
However, the ALJ is not required to give such opinions special significance
because they were rendered by a treating medical source. Id.
“Where there is no allegation of a physical or mental limitation or
restriction of a specific functional capacity, and no information in the case
record that there is such a limitation or restriction, the adjudicator must
consider the individual to have no limitation or restriction with respect to that
functional capacity.” SSR 96-8p. However, the ALJ “must make every
reasonable effort to ensure that the file contains sufficient evidence to assess
RFC.” Id.
When writing its opinion, the ALJ “must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence. . . In assessing RFC, the adjudicator must
. . . explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.” Id.
Finally, “[T]o find that a claimant has the [RFC] to perform a certain type
of work, the claimant must have the ability to perform the requisite acts day in
and day out, in the sometimes competitive and stressful conditions in which
136

real people work in the real world.” Reed v. Barnhart, 399 F.3d 917, 923 (8th
Cir. 2005) (citations omitted, punctuation altered); SSR 96-8p 1996 WL 374184
(“RFC is an assessment of an individual’s ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing
basis” for “8 hours a day, for 5 days a week, or an equivalent work schedule.”).
2.

Physical RFC

Regarding Ms. Porter’s physical RFC, she alleges the ALJ failed to
properly consider her functional limitations imposed by her knee, back and hip
conditions; failed to consider absenteeism for physical therapy appointments;
failed to consider her myofascial pain syndrome; improperly discounted her
reports of pain as unsupported by objective medical evidence; failed to consider
the impact of Ms. Porter’s COPD; and improperly accorded great weight to
nontreating nonexamining medical sources over the opinions of treating
medical sources.
a.

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

As discussed above with regard to the errors alleged at step two,
myofascial pain syndrome and discogenic pain were diagnoses embraced
respectively by Dr. Cote and Dr. Woodruff to explain Ms. Porter’s low back
pain. AR319, 799. Myofascial pain syndrome originates from trigger points in
the patient’s muscles, whereas discogenic pain originates from a damaged
vertebral disc, particularly due to degenerative disc disease. Both Dr. Cote and
Dr. Woodruff were addressing Ms. Porter’s complaints of low back pain
137

radiating into hips and legs. In formulating Ms. Porter’s RFC, the ALJ was not
tasked with resolving which medical explanation for Ms. Porter’s back pain was
most persuasive, but rather with determining what functional limitations were
imposed by Ms. Porter’s back and hip pain. Similarly, Dr. Woodruff considered
that Ms. Porter’s hip joints might be the source of her pain, but ultimately
eliminated that hypothesis and settled on a diagnosis of discogenic—back—
pain. Thus, when Ms. Porter alleges the ALJ failed to consider Dr. Cote and
Dr. Woodruff’s diagnoses, this really constitutes one issue.
The ALJ discounted Ms. Porter’s subjective complaints of pain, asserting
there was no objective evidence supporting her complaints. This ignores
Dr. Cote’s diagnosis of myofascial pain syndrome and Dr. Woodruff’s diagnosis
of discogenic pain, based upon objective medical imaging of Ms. Porter’s spine.
Of course, both of these diagnoses occurred prior to Ms. Porter’s L5-S1
vertebral fusion surgery on February 6, 2015. The ALJ paints with a broad
and inaccurate brush when it suggests that the surgery was a panacea for
Ms. Porter’s back condition.
The record reflects that the back surgeon, Dr. Woodruff, saw Ms. Porter a
handful of times in the three months following her surgery. AR785-91 At the
three-month mark, May 8, 2015, he released her to attend physical therapy to
increase her strength and mobility in her lower back and stated he would see
her again in one year. AR785. Ms. Porter then underwent a series of 15
physical therapy sessions between May 18, 2015, and July 20, 2015. AR577618.
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On the date of her last physical therapy appointment in the record, she
was given an assessment by Dr. Brett Forman. At that time, she exhibited
tightness bilaterally in her lumbosacral paraspinal muscles. AR577. She
stated her pain was such that it prevented her from sitting or standing for more
than one hour. Id. Straight-leg raising was positive for tightness. Id. Her
lumbar flexion, extension, right- and left-side bending were moderately
restricted. Id. Dr. Forman summarized that Ms. Porter exhibited a general
loss of functional strength and mobility throughout her lumbar and pelvic
region which limited her ability to return to regular activity. Id. Dr. Forman
recommended further physical therapy to reduce pain, improve mobility,
improve strength and tolerance for a more active lifestyle. Id. He
recommended exercise, manual therapy and neuromuscular re-education. Id.
He recommended Ms. Porter be seen twice a week for 6 to 8 weeks. Id.
Despite this recommendation, in the five months between July 20, 2015,
and the date of the ALJ hearing on December 30, 2015, there are no further
physical therapy records in the administrative record. On October 8, 2015,
Ms. Porter reported to the emergency room with complaints of back pain and
received a prescription for pain medication. AR832-33. This consists of her
only back-related medical record following her first round of post-surgery
physical therapy for her back.
One might infer from the fact Ms. Porter sought no further medical
treatment (save the October 8 visit) for her back pain that she her back pain
had resolved. One might infer from the fact that Ms. Porter did not follow the
139

recommendation for additional physical therapy that her pain had resolved to
the point she felt she did not need additional therapy. However, there is no
need to speculate. This case is being remanded for other reasons. If there are
additional medical records relating to the progress of Ms. Porter’s back
following her surgery, the court orders the ALJ to develop the record by
obtaining those records. Furthermore, as of July 20, 2015, Ms. Porter still had
residual strength and mobility deficits in her lower back (AR577) that are not
reflected in the ALJ’s physical RFC. The court orders the ALJ on remand to
reconsider these deficits in Ms. Porter’s lower back and incorporate any
resulting functional limitations into Ms. Porter’s physical RFC.
Ms. Porter argues on appeal that the ALJ failed to consider absenteeism
for physical therapy appointments in determining whether she could maintain
a job. This is relevant for the period from June 5, 2013, to July 20, 2015,
where the record reflects numerous medical and physical therapy
appointments.
However, for the period from July 20, 2015, to December 30, 2015, the
record reflects that Ms. Porter was no longer attending physical therapy. The
ALJ did not err in failing to taking into account absenteeism for physical
therapy appointments during this later time frame because, by the time of the
hearing, that was no longer an issue. After development of the record on
remand, if it appears there were significant medical appointments that would
have raised an issue as to absenteeism, and if it appears that absenteeism

140

would be ongoing, the court directs the ALJ to factor that into its step five
analysis.
b.

Left Knee

The medical records regarding Ms. Porter’s left knee are summarized
above in the discussion of alleged error at step two. To reiterate, Ms. Porter
experienced chronic pain in her left knee following surgery in 2008 that
continued through November 27, 2013. Her pain was substantiated by
crepitance and a positive grind test as well as x-rays showing degenerative
changes in the patellofemoral joint and mild medial joint space narrowing.
AR821. She had impaired strength in both flexion and extension in her left
knee in October, 2013. AR409.
On January 24, 2014, Ms. Porter had been using a TENS unit on her
knee, had been doing physical therapy, and had gotten a round of knee
injections, all of which she reported controlled her symptoms. AR812.
Objectively, her tenderness involving the knee was markedly improved. Id.
Ms. Porter was instructed to continue with home exercises and the TENS unit.
Id. She was also told she could receive another series of knee injections in May
or June if the pain recurred. Id.
On September 24, 2014, Ms. Porter reported knee pain, but said it was
not emanating from the knee joint, but rather seemed to emanate from her
lumbar spine and radiate down her leg. AR810. The doctor agreed that the leg
pain was radicular (it was radiating from the back), not originating in the knee
itself. AR810-11.
141

Ms. Porter reported to her physical therapist post-back surgery that she
continued to experience left knee pain. AR618. However, her knee extension
strength and flexion strength were normal on May 18, 2015, at the beginning of
her physical therapy and continued in that status to the end of her round of
therapy. AR577, 619. Unlike the first therapy visit, there is no record
Ms. Porter complained of left knee pain on any of her other 15 physical therapy
visits. AR576-617. Her physical therapy during this two-month span
included squats on a stability wall for sit to stand training. AR577-609.
In summary, the record shows Ms. Porter was receiving intensive
treatment of her left knee in 2013. By January, 2014, she reported her
symptoms were controlled by a combination of home exercises, injections, and
the TENS unit. From January, 2014, to May, 2015, Ms. Porter never reported
any knee pain which she related to her knee joint and then there is only a
single such report—May 18, 2015. Although Ms. Porter received extensive
physical therapy after May 18, 2015, she never again reported knee pain.
Furthermore, the second half of her physical therapy in 2015 included
routinely doing wall squats.
Ms. Porter points to the November 27, 2013, record indicating she could
not squat without pain and argues the ALJ should have incorporated this
limitation into his physical RFC formulation. The post-November, 2013,
records show Ms. Porter sought no further medical attention for her knee after
January 24, 2014, and she engaged in squats repeatedly during physical
therapy for her back in the early summer of 2015.
142

Nevertheless, the ALJ was required when formulating RFC to consider all
of Ms. Porter’s impairments, severe and nonsevere. It does not appear that the
ALJ considered Ms. Porter’s knee impairment in determining her RFC. For
example, the RFC contains no limitations in kneeling, stair climbing or stair
descending, all activities Ms. Porter consistently reported difficulties with and
which were documented by her physical therapy providers. On remand, the
ALJ is directed to consider what, if any, functional limitations are imposed by
Ms. Porter’s nonsevere knee impairment.
c.

COPD

As to Ms. Porter’s COPD, this impairment and the concomitant
functional limitations it imposed are adequately documented in the record.
Furthermore, there is evidence in the record that exposure to environmental
smoke or fumes exacerbates Ms. Porter’s COPD. AR894 (medical treatment for
breathing issues sought after Ms. Porter was exposed to campfire smoke). Yet
the ALJ incorporated no limitations in Ms. Porter’s physical RFC due to her
COPD. The ALJ apparently concluded Ms. Porter had an unlimited ability to be
exposed to fumes, odors, dusts, gases, smoke and poor ventilation. This
conclusion is not supported by substantial evidence in the record.
The ALJ made reference to the fact that Ms. Porter’s caregivers
repeatedly advised her to quit smoking, but that she either could not or would
not heed that advice. The reader is left to imagine what significance this
comment had to the ALJ’s analysis because the ALJ never explicitly tells the
reader how this fact was used.
143

A claimant’s failure to follow recommended medical treatment may bear
on the credibility of the claimant’s described symptoms. See SSR 82-59 and
SSR 16-3p. However, before the ALJ uses failure to follow treatment adversely
against the claimant, the ALJ is required to notify the claimant of the issue so
as to give the claimant an opportunity to explain why she did not follow the
prescribed treatment. SSR 16-3p. In addition, the ALJ must find that if the
claimant had followed the recommended treatment, it would have restored the
claimant’s ability to work. SSR 82-59. Neither of these requirements were
satisfied by the ALJ’s reference to Ms. Porter’s continued cigarette smoking.
Therefore, her smoking does not remove COPD limitations from the physical
RFC formulation.
Similarly, if nicotine addiction is considered a species of drug addition,
its presence in the record does not automatically result in disregard of the
symptoms. "A claimant is not entitled to disability benefits where alcoholism or
drug addiction materially contributes to the claimant's disability.” 42 U.S.C.
§ 423(d)(2)(C). Where medical evidence of a claimant's drug addiction exists,
the Commissioner must determine if the addiction is a material factor in the
claimant's disability. See Rehder v. Apfel, 205 F.3d 1056, 1059-60 (8th Cir.
2000); 20 C.F.R. § 404.1535 (2002). If the Commissioner determines that the
claimant would still be disabled absent drug addiction, the claimant is entitled
to benefits. Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002). Here,
the ALJ engaged in no but-for analysis concerning whether Ms. Porter would
still be disabled absent her nicotine addiction.
144

Finally, although there are repeated references in the medical records
that Ms. Porter was advised to stop smoking, the record does not contain a
clear link between her COPD and her smoking—no doctor or other caregiver
stated or opined that her pulmonary symptoms were caused by her smoking.
Kelley v. Callahan, 133 F.3d 583, 589-90 (8th Cir. 1998) (rejecting ALJ’s
credibility analysis based on claimant’s smoking where there was no evidence
in the record showing that smoking was the cause of claimant’s symptoms or
that her complaints would be relieved by quitting smoking). And the record
reflects Ms. Porter experienced pulmonary issues during some periods when
she allegedly was not smoking. For example, she repeatedly stated she quit
smoking during the immediate months after her back surgery. See AR632,
788, 791. However, during this nonsmoking period, she sought medical care
for shortness of breath. See AR632 (complaining of shortness of breath March
20, 2015), and AR788 (stating she continued not to smoke on March 26, 2015).
However, there is also some suggestion that Ms. Porter’s smoking
cessation (as reported to her physicians) was either a lie or was extremely
short-lived, especially pre-surgery. Dr. Woodruff indicated he would perform
surgery only if Ms. Porter quit smoking, so she reported to him on December
19, 2014, that she had quit smoking for 2 to 3 months. AR802. When she
contracted pneumonia after her surgery in the hospital, she informed medical
staff on February 7, 2015, that she had started smoking again prior to surgery;
that she had tried to quit and would do so for 2 weeks, then restart. AR871.
This only points out the need for further explanation of this issue. Therefore,
145

on this record, the ALJ was not justified in wholly disregarding Ms. Porter’s
COPD functional limitations when formulating her physical RFC even taking
into account her continued smoking.
d.

Nontreating Nonexamining Physicians’ Opinions

Ms. Porter asserts in her brief that the ALJ erred in assigning “great
weight” to the opinions of nontreating nonexamining physicians Dr. Eugene
Heller and Dr. Bich Duong that Ms. Porter was capable of light work with some
postural and environmental limitations. That is literally the whole of
Ms. Porter’s argument. See Docket No. 19 at p. 23. She does not expand on
this and explain why Dr. Heller and Dr. Duong’s opinions were wrong. She
does not explain how or if those opinions conflict with other treating
physicians’ opinions.
In her reply, Ms. Porter asserts that the “record also contained a treating
specialist’s opinion of limitations. According to Porter’s attorney, Dr. Cote
opined that Porter could sit a half-hour at a time for total of two to three hours
in a work day, stand 30 minutes at a time for two or three total hours in a work
day, and ‘probably there would be unscheduled breaks.’ ” See Docket No. 21 at
p. 8. The support for Ms. Porter’s argument, which is never linked back to the
ALJ’s treatment of the opinions of Dr. Heller and Dr. Duong, is wrong on
many levels.
First, the citation to the record Ms. Porter gives is AR33. See Docket
No. 21 at p. 8. This is a citation to the transcript from the first ALJ hearing on
Ms. Porter’s first, failed application for benefits which she abandoned without
146

appealing. Evidence from that first application is, as determined above, “water
under the bridge.” It is no longer relevant. Furthermore, the citation is not to
a medical record or medical opinion from Dr. Cote. Instead, it is a citation to
Ms. Porter’s first attorney describing the contents of Dr. Cote’s RFC assessment
in Ms. Porter’s first application. This is much too attenuated to constitute
evidence in this, Ms. Porter’s second application for several reasons, not the
least of which is the referenced opinion was at least 2 years old at the time of
the second ALJ hearing and Ms. Porter had a lumbar fusion surgery since that
opinion was rendered, substantially impacting her lower back condition.
Ms. Porter has not adequately supported her argument that the ALJ
erred in its treatment of the consulting doctors’ opinions. However, Ms. Porter
did adequately support her argument that the ALJ failed to consider the
functional limitations imposed by her COPD, left knee, and back conditions. In
addressing these issues on remand, the ALJ will, of necessity, have to discuss
whether the opinions of Drs. Heller and Duong are congruent with, or
contradict, the record evidence.
3.

Mental RFC

The court has already concluded the ALJ erred in failing to determine
that Ms. Porter’s mental conditions constituted severe impairments at step two.
There is no evidence the ALJ considered this/these severe impairments in
formulating Ms. Porter’s mental RFC at step four. In fact, as already
determined above, the ALJ erroneously rejected the only opinions by acceptable
medical sources about Ms. Porter’s mental RFC. Because of these errors, this
147

court has already decided this case must be remanded for further development
of the record as to Ms. Porter’s mental impairments and the treatment of the
opinions of Dr. McWilliams and Dr. Berkowitz. Remand is also warranted as to
Ms. Porter’s mental RFC. The court accordingly reverses and remands for a
renewed determination of Ms. Porter’s mental RFC at step four, taking into
account whatever additional evidence is developed and evaluating the opinions
of the two consulting experts according to the Commissioner’s own regulations.
H.

Did the ALJ’s Step Five Decision Comply with the Law?
Ms. Porter alleges the ALJ erred at step five in two ways. First, although

the ALJ based its decision on testimony from the vocational expert (VE) that
Ms. Porter could do other jobs, the hypothetical to the VE describing
Ms. Porter’s functional limitations was incorrect (for the same reasons
Ms. Porter has alleged the ALJ erred in formulating her RFC). The court agrees
and reverses and remands for the ALJ to consider anew the step five issue once
the ALJ has developed the record and formulated a proper RFC based on the
above-discussed issues.
The second way Ms. Porter alleges the ALJ erred was in determining the
number of jobs available. The VE testified Ms. Porter could do jobs of sewing
machine operator, office helper and food and beverage order clerk. AR90. The
VE further testified there were 143,000, 83,000 and 215,000 of each of these
jobs, respectively, which were available “nationally.” Id.
Section 423(d) of Title 42 provides in pertinent part as follows:
(d) “Disability” defined
148

(1)The term “disability” means—
(A) Inability to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which can be expected
to result in death or which has lasted or can be
expected to last for a continuous period of not less
than 12 months;
***
(2) For purposes of paragraph (1)(A)—
(A) An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in
significant numbers either in the region where
such individual lives or in several regions of the
country.
See 42 U.S.C. § 423(d)(1)(A) and (2)(A) (emphasis added).
What is clear from the above emphasized language is that “work which
exists in the national economy” is a term of art in Social Security law. It does
not mean work in the entire United States. Instead, it means “work which
exists in significant numbers either in the region where such individual lives or
in several regions of the country.” Id. (emphasis added). Now, what does that
definition mean exactly?
The Commissioner has to show that jobs exist in Ms. Porter’s “region” or
in “several regions of the country.” We know from the statutory language that
149

“region” does not mean “immediate area,” but defining what a term does not
mean is not all that helpful in defining what it does mean.
The Commissioner’s regulation, 20 C.F.R. § 404.1566, is likewise
unhelpful. It does not define “region.” Id. It says that “region” is not equal to
“immediate area.” Id. at (a)(1).
In Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir. 2004), the court held
the “other regions” language that Congress used in § 423(d)(2)(A) was intended
to prevent the Social Security Administration from denying benefits on the
basis of isolated jobs existing only in very limited numbers in relatively few
locations outside the claimant’s region. This sentiment is paralleled in the
Commissioner’s regulation where it states: “[i]solated jobs that exist only in
very limited numbers in relatively few locations outside of the region where you
live are not considered ‘work which exists in the national economy.’ We will
not deny you disability benefits on the basis of the existence of these kinds of
jobs.” 20 C.F.R. § 404.1566(b).
The dictionary defines “region” as “a large, indefinite part of the earth’s
surface, any division or part.” Webster’s New World Dictionary, at 503 (1984).
“A subdivision of the earth or universe.” OED (3d ed. Dec. 2009). We know
from Congress’ statute and from the Commissioner’s regulation, that “region”
does not mean the entire country. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§ 1566(b). The dictionary defines “region” as an indefinite parcel that is part of
the whole, and so must be something less than the whole. The court
concludes, as it must, that “nationwide” does not truly mean “nationwide.”
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Such is the nature of agency law. Instead, at step five, the ALJ must find that
jobs the claimant can do exist in substantial numbers in the claimant’s own
“region” (something less than the whole nation), or in “several regions” (several
parts that, together, consist of something less than the whole nation). Id.
In Johnson v. Chater, 108 F.3d 178, 178 (8th Cir. 1997), the claimant
appealed the issue whether the VE’s testimony was sufficient to prove that
there were jobs existing in substantial numbers in the national economy. The
VE had testified that Johnson could perform sedentary, unskilled work such as
being an addresser or document preparer. Id. at 179. The VE said that there
were 200 such positions in Iowa and 10,000 such positions nationwide. Id.
Johnson took issue with whether 200 positions in his home state of Iowa
constituted “substantial” numbers of jobs. Id. at 180 n.3. The court rejected
Johnson’s argument and held that the VE’s “testimony was sufficient to show
that there exist a significant number of jobs in the economy that Johnson can
perform.” Id. at 180.
The facts in Johnson stand in stark contrast to the facts in Ms. Porter’s
case. In Johnson, the VE testified to the number of jobs available in the
claimant’s region (in that case, his state), and also the number of jobs available
in the whole country. Id. at 179. Here, the VE testified only to the number of
jobs available “nationally.” AR90. As established above, both § 423(d)(2)(A)
and § 404.1566 require more specificity than that. The ALJ and the VE must
find that substantial numbers of jobs are available in Ms. Porter’s region or in
several regions. See Harris, 356 F.3d at 931 (the ALJ must find at step five
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that claimant is “capable of performing work that exists in significant numbers
within the regional and national economies.”) (emphasis added).
The burden on is on the Commissioner at step five of the sequential
analysis. Johnson, 108 F.3d at 180. Therefore, the absence of valid evidence
of substantial numbers of jobs in Ms. Porter’s “region” or in “several regions” is
an absence of evidence that cuts against the Commissioner. While this court
might hazard a guess that there are substantial numbers of office helper jobs
available in South Dakota, or in the region consisting of South Dakota, North
Dakota, Wyoming and Montana, or in several other regions in the country, this
court is not allowed to guess about facts that might have been able to have
been adduced at the agency level. The failure of proof requires remand to the
agency to further develop the facts at step five.
I.

Type of Remand
For the reasons discussed above, the Commissioner’s denial of benefits is

not supported by substantial evidence in the record. Ms. Porter requests
reversal of the Commissioner’s decision with remand and instructions for an
award of benefits, or in the alternative reversal with remand and instructions
to reconsider her case.
Section 405(g) of Title 42 of the United States Code governs judicial
review of final decisions made by the Commissioner of the Social Security
Administration. It authorizes two types of remand orders: (1) sentence four
remands and (2) sentence six remands. A sentence four remand authorizes the
court to enter a judgment “affirming, modifying, or reversing the decision of the
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Secretary, with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g).
A sentence four remand is proper when the district court makes a
substantive ruling regarding the correctness of the Commissioner’s decision
and remands the case in accordance with such ruling. Buckner v. Apfel, 213
F.3d 1006, 1010 (8th Cir. 2000). A sentence six remand is authorized in only
two situations: (1) where the Commissioner requests remand before answering
the Complaint; and (2) where new and material evidence is presented that for
good cause was not presented during the administrative proceedings. Id.
Neither sentence six situation applies here.
A sentence four remand is applicable in this case. Remand with
instructions to award benefits is appropriate “only if the record overwhelmingly
supports such a finding.” Buckner, 213 F.3d at 1011. In the face of a finding
of an improper denial of benefits, but the absence of overwhelming evidence to
support a disability finding by the Court, out of proper deference to the ALJ the
proper course is to remand for further administrative findings. Id.; Cox v.
Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998).
In this case, reversal and remand is warranted not because the evidence
is overwhelming, but because the record evidence should be clarified,
developed, and properly evaluated. See also Taylor v. Barnhart, 425 F.3d 345,
356 (7th Cir. 2005) (an award of benefits by the court is appropriate only if all
factual issues have been resolved and the record supports a finding of
disability). Any one of the errors in the record might not, by itself, warrant
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remand, but the culmination of each of the errors convinces the court that
remand is in order. See Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir.
2008) (stating, “[s]everal errors and uncertainties in the opinion, that
individually might not warrant remand, in combination create sufficient doubt
about the ALJ’s rationale for denying [disability benefits] to require further
proceedings below.”). Therefore, a remand for further administrative
proceedings is appropriate.
CONCLUSION
Based on the foregoing facts, law and analysis, this court hereby
ORDERS that plaintiff Kimberly Porter’s motion to reverse the
Commissioner [Docket No. 18] is granted. This case is remanded to the agency
pursuant to 42 U.S.C. § 405(g), sentence four for further proceedings in
accordance with this opinion.
DATED May 9, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge

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