United States District Court, W.D. Missouri, Western Division
PAMELA S. PORTER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
NANETTE K. LAUGHREY, UNITED STATES DISTRICT JUDGE.
Pamela Porter appeals the Commissioner of Social
Security's final decision denying her application for
disability insurance benefits under Title II and Title XVI of
the Social Security Act. For the following reasons, the Court
reverses and remands the decision of the ALJ.
was born in 1970, and alleges that she became disabled
beginning on 2/3/2012. She filed her initial applications for
Titles II and XVI benefits on 6/14/2012. The ALJ held a
hearing on 11/13/2013, and issued a decision denying benefits
on 1/31/2014. After the Appeals Council declined to review
the ALJ's decision, Porter appealed to this Court. On
6/22/2015, the Court found that the ALJ committed reversible
error, and remanded the case for reconsideration. See
Porter v. Colvin, No. 4:14-CV-00813-NKL, 2015 WL
3843268, at *1 (W.D. Mo. June 22, 2015); Tr. 744. On
11/9/2016, the ALJ held a second hearing, and on 11/30/2016
issued another unfavorable decision. Porter then filed a
timely appeal with this Court.
claims disability based primarily on morbid obesity, Chronic
Obstructive Pulmonary Disease (COPD), bilateral knee
degenerative arthritis, sleep apnea, depression, anxiety,
carpal tunnel, a right shoulder impairment, hypertension, and
August 2009, Porter presented to the ED with a cough,
intermittent fevers, and a sore throat. She was diagnosed
with bronchitis with wheezing, and prescribed Bactrim,
Prednisone, and Tessalon Perles. Tr. 347. A week later Porter
was admitted to the hospital, and treated with Cymbalta and a
CPAP machine. She spent three days in the hospital, and was
discharged with prescriptions for Xanax, Cymbalta,
Lisinopril/HCTZ, Prednisone taper, Advair, and Singulair. Her
diagnoses included asthma exacerbation, tobacco abuse,
obesity, hypertension, and depression. Tr. 339.
2010, Porter visited Dr. Navato, her treating psychiatrist.
Her mood was depressed, and Dr. Navato prescribed Trazodone
for her anxiety. Tr. 384. Porter returned to Dr. Navato in
December 2010, and by January 2011 she reported feeling
hopeful and her mood was stable. Tr. 382. In May 2011,
however, Porter reported that she was not sleeping well and
felt the effects of her medication were not lasting as long.
She stated that her whole body was hurting, and the pain was
waking her up. Tr. 381. In June 2011, Porter reported that
she was still in pain “all the time.” Tr. 380.
October 2011, Porter was evaluated in the emergency
department. She stated that she had suffered back and leg
pain for the last five days, and that she had fallen out of
bed the previous night. Sciatica was diagnosed, and Ultram,
Prednisone, and Soma were prescribed. Tr. 413. Porter
returned to the emergency department in December with
vomiting and diarrhea.
January 2012, Porter visited Dr. Navato again. Her mood was
euthymic, and she was still battling depression. She reported
sleep disturbance, low motivation, and low mood. She was
diagnosed with major depressive disorder and anxiety
disorder, and Abilify was prescribed. Tr. 378. Several weeks
later Porter reported that she was still depressed and could
not tolerate Abilify. Trazodone and Abilify were
discontinued, and Cymbalta, Seroquel, Xanax, and Lidoderm
patches were prescribed. Tr. 377.
February 2012, Porter returned to the emergency department
because she injured her right shoulder at work trying to lift
fifty pound bags of cat litter. She was diagnosed with a
right shoulder strain, and Zanaflex and Vicodin were
prescribed. Tr. 417.
March 2012, Porter visited various physicians complaining of
shortness of breath, intermittent fever, and chills. She
refused BiPAP and intermittently took off her oxygen. During
one visit she was found to have pneumonia and admitted to the
hospital. Tr. 423. While in the hospital, one of Porter's
doctors learned that she may not have been getting the amount
of oxygen that she needed. Tr. 431. The doctor diagnosed
exacerbation of COPD, pulmonary infiltrates, hilar and
mediastinal adenopathy, oropharyngeal thrush, obesity, and
obstructive sleep apnea. Tr. 432. When Porter was ultimately
discharged from the hospital, her medications included
Levaquin, Diflucan, Prednisone, Albuterol nebulizer solution,
Vitamin D, Guaifinesin, Prilosec, Colace, Milk of Magnesia,
Dyazide, Lisinopril, Pravastatin, Xanax, Cymbalta, Tramadol,
Tylenol, Skelaxin, Advair, Zanaflex, Iron, low-dose Insulin
sliding scale, and Zyrtec. Tr. 424.
April 2012, Porter visited Erich Lingenfelter, M.D., who
evaluated her for pain in her right shoulder. Tr. 1546. She
reported that physical therapy had not been helpful. X-rays
were negative, and an MRI did not show any structural damage
to the rotator cuff but showed some degenerative changes. Dr.
Lingenfelter stated that Porter's pain was drastically
out of proportion to any pathology that this mechanism might
cause, and noted that Porter was grossly obese, with
extremely poor body habitus, and fibromyalgia. He also
observed that Porter was on Cymbalta and anxiolytic
medications, which can cause perceptions of pain to be over
the top at times. Tr. 1546. He released Porter to work with
limitations in overhead lifting and repetitive outreaching.
visited Dr. Navato again in May 2012. Her mood was dysthymic
with a normal affect. She experienced problems with
depression and insomnia, was not working, and had no income.
She was prescribed Trazodone, Cymbalta, Seroquel, Xanax, and
Lidoderm patches. Tr. 375. Porter also saw Dr. Lingenfelter
again, who released her to full duties with respect to her
right shoulder. Tr. 2310.
2012, Porter visited Rachel Whitfield, a nurse practitioner.
Tr. 363. She reported feeling “okay, ” but had
upper respiratory infection symptoms, and an examination
showed scattered wheezing. Porter was diagnosed with tobacco
use disorder, HTN, lumbago, chronic airway obstruction,
obesity, and esophageal reflux. She also had very elevated
cholesterol, and Fish Oil was prescribed. Cipro was
prescribed for chronic airway obstruction, and samples of
Symbicort aerosol and Albuterol nebulizer were given. Tr.
mental state was unchanged through August 2012. She visited
Dr. Navato in September 2012, and reported that she enjoyed
her summer and spent time reading. However, by October she
reported that she was not journaling because she was afraid
someone would find the journal and use the information
against her. Tr. 525.
Navato examined Porter in January 2013, which revealed a
smoker's cough, normal gait, mildly depressed mood, good
attention and concentration, normal memory, and good
judgment. Tr. 522. In February Porter visited R. Whitfield,
NP, and was diagnosed with COPD exacerbation, morbid obesity,
and sleep apnea. Cipro and Prednisone were prescribed, and
Porter was referred to a bariatric surgeon and to sleep
medicine. Tr. 612-13. In March, Porter was examined by Dr.
Bhat in the Sleep Clinic. A sleep study showed “very
severe obstructive sleep apnea, ” which was corrected
during the study. The following day, Porter reported
“the best sleep quality” and extra energy. Tr.
April 2013, Porter presented to the emergency department with
bilateral foot pain and swelling. An EKG showed sinus
tachycardia. A chest x-ray showed mild multilevel
degenerative disc disease within the spine and mild
cardiomegaly. Tr. 557. HCTZ and Ultram were prescribed. Tr.
560. An echocardiogram later that month revealed normal left
ventricular ejection fraction, tachycardia, and trace mitral
regurgitation. She was admitted to the hospital a week later
for pitting edema in both legs, fatty infiltrate of the
liver, and acute exacerbation of COPD and dyspnea. Tr.
2013, Porter saw Dr. Bhat and reported 62% compliance with
her CPAP. She was encouraged to increase her compliance, lose
weight, and stop smoking. Porter was also examined by R.
Whitfield, NP, and reported experiencing right knee pain,
which intensified with bending and weight bearing. She rated
her pain an 8 out of 10. She was diagnosed with
osteoarthritis, allergic rhinitis, hypercholesterolemia,
tobacco use disorder, chronic airway obstruction, and
esophageal reflux. Meloxicam and Zyrtec were prescribed. Tr.
2013, Porter presented to the emergency department, where a
chest x-ray revealed chronic interstitial changes and
peribronchial cuffing consistent with chronic bronchitis.
Prednisone and breathing treatments were administered, and
Porter reported feeling better. Tr. 554. Dyspnea, COPD
exacerbation, and bronchitis were diagnosed, and Prednisone
and Levaquin were prescribed. Porter was also directed to use
home oxygen and breathing treatments. Tr. 554. Porter
continued to visit the emergency department and her doctors
throughout July and August complaining of similar symptoms
and receiving similar diagnoses.
August 2013, Porter was examined by Dr. Conaway, a
cardiologist, for pre-op clearance prior to possible lap band
surgery. Tr. 621. Dr. Conaway opined the edema was likely due
to venous stasis secondary to morbid obesity. He opted to
re-evaluate Porter again in three months.
October 2013, Porter was examined for a cough and upper
respiratory infection that was not responding to her
medications. Tr. 984. Examination showed pharyngeal edema and
moderate wheezes, and upper respiratory infection and acute
sinusitis were diagnosed. Tr. 986. Cipro and Guafenesin were
prescribed. Tr. 987. Later that month, Porter was examined
for a bad cold with productive cough. She was running low on
breathing treatment medication and had no energy. She
reported using her CPAP faithfully. She was diagnosed with
allergic rhinitis, obstructive sleep apnea, morbid obesity,
COPD, and acute bronchitis. She was prescribed Albuterol
nebulizer solution, Symbicort, Albuterol inhaler, Prednisone
taper, and Singulair to help midigate her symptoms.
visited Dr. Navato in February 2014, where she had an
elevated/expansive, irritable mood, decreased sleep, flight
of ideas/racing thoughts, and increased activity/psychomotor
retardation. She was diagnosed with major depressive disorder
for which Zoloft was to be increase, and she received refills
on Trazadone, Xanax, Abilify, and Lyrica. Tr. 1292. In April
2014, R. Whitfield, NP, reported that Porter was feeling
down, depressed, or hopeless, and suicidal ideation more than
half the days. Tr. 1103-04.
2014, Porter visited Pim Jetanalin, M.D., in the rheumatology
clinic. She reported low back, hip, and knee pain, as well as
weakness, decreased activity, nasal congestion, shortness of
air, nausea, and depression. Tr. 1166. She was diagnosed with
chronic multiple joint and back pain, COPD, morbid obesity,
and obstructive sleep apnea. Tr. 1167-68.
August 2014, Porter reported to the emergency room for lower
back pain, and examination showed tenderness in the lumbar
spine. Tr. 977. Two weeks later, Porter visited the
rheumatology clinic again, for pain in lower lumbar, hips,
and knees. She also reported fatigue, nausea, and depression.
Tr. 1051-1053. A chest x-ray showed chronic interstitial
changes and periobronchial cuffing consistent with chronic
bronchitis. Physical therapy and strengthening exercises were
recommended. Dr. Jetanalin preferred to avoid narcotic pain
medication due to the potential for addictions, tolerance,
and overdose. Neurontin was added to Meloxicam and Cymbalta.
October 2014, Porter visited neurosurgery and the
rheumatology clinic for back, hip, and knee pain. Tr.
1649-54, 1037. She received diagnoses of low back pain,
lumbar spine spondylosis, mid thoracic pain, morbid obesity,
Tr. 1650, osteoarthritis and degenerative disc disease, and
spinal stenosis. Tr. 1042. Physical therapy was recommended,
but Porter stated that she could not afford it. Celebrex,
Flexeril, and Ultracet were prescribed, Gabapentin was
continued, and weight loss and smoking cessation were
was admitted to the hospital in December 2014. Her discharge
diagnoses included COPD exacerbation, acute bronchitis, acute
sinusitis, respiratory distress, morbid obesity, type 2
diabetes, obstructive sleep apnea, hypertension, depression,
leukocytosis, dyslipidemia, hypercapnia, and tobacco abuse.
Tr. 1203. Discharge medications included azithromycin,
Proventil, DuoNeb treatments, Norco, Advair, Mucinex, Vantin,
Cymbalta, Xanax, Simvastatin, Tylenol, Flexeril, Prinzide,
Potassium, Lasix, Mobic, Zetia, Neurontin, and Oxygen. Tr.
January 2015, Porter returned to neurosurgery. She continued
to take Ultracet, and still had lower back pain. Low back
pain, lumbar spondylosis, morbid obesity, and hypertension
were diagnosed. Surgery was not recommended. Porter also
visited Dr. Navato, who conducted a psychiatric evaluation.
He diagnosed major depressive disorder requiring ongoing
therapy and psychotropics, including Zoloft, Trazadone,
Xanax, Abilify, Lyrica, and Lunesta.
February 2015, a pulmonary function test showed mild
obstructive airway disease of the peripheral airway. Tr.
1300. Porter also visited the emergency department with right
knee pain, was prescribed Norco, and referred to sports
medicine. Tr. 1982. She returned to neurosurgery, where she
was seen for continued low back pain. Lyrica and Flexeril
provided little relief, and Porter was unable to afford
physical therapy. She also reported decreased activity,
depression, and anxiety. Tr. 1831. Home exercise, pain
management, Zanaflex, and Tramadol were prescribed, and
Ultracet and Flexeril were discontinued.
visited Dr. Schulz in sports medicine in March 2015.
Diagnoses included right rhomboid strain due to poor posture
and severe medical compartment osteoarthritis of the right
knee. Injections with a heel wedge were recommended, as was a
knee replacement. Tr. 1955. A trigger point injection was
administered for Porter's right shoulder, as well as
exercises. Two weeks later, Porter reported that the shoulder
injection provided one week of improvement. Tr. 1957.
April 2015, Porter was seen in orthopedics for her right knee
pain. Tr. 1978. Dr. McCormack performed a right knee
arthroscopy and partial meniscectomy. Tr. 1996-97. Two weeks
later, Porters symptoms had improved, but Dr. McCormack still
indicated that a partial knee replacement would eventually be
necessary. Porter returned to the orthopedic clinic in July,
because her right knee ...