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Porter v. Berryhill

United States District Court, W.D. Missouri, Western Division

March 7, 2018

PAMELA S. PORTER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.

         I. Background

         Porter 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.

         A. Medical history

         Porter 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 GERD.

         In 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.

         In June 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.

         In 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.

         In 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.

         In 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.

         Throughout 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.

         In 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. Tr. 1547.

         Porter 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.

         In July 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. 395.

         Porter's 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.

         Dr. 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. 545.

         In 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. 587-88.

         In May 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. 607.

         In June 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.

         In 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.

         In 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.

         Porter 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.

         In July 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.

         In 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.

         Throughout 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 encouraged.

         Porter 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. 1204.

         In 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.

         In 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.

         Porter 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.

         In 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 ...

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