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Green v. U.S. Commissioner Social Security Administration

United States District Court, W.D. Louisiana, Lafayette Division

January 13, 2015

ERONICA GREEN,
v.
U.S. COMMISSIONER SOCIAL SECURITY ADMINISTRATION.

REPORT AND RECOMMENDATION

PATRICK J. HANNA, Magistrate Judge.

Before the Court is an appeal of the Commissioner's finding of non-disability. Considering the administrative record, the briefs of the parties, and the applicable law, it is recommended that the Commissioner's decision be reversed and remanded for further consideration consistent with this report and recommendation.

BACKGROUND

The claimant, Veronica Green, was born on April 7, 1967.[1] On June 3, 2011, when she was forty-four years old, Ms. Green applied for Supplemental Security Income benefits, alleging a disability onset date of November 1, 2010[2] due to muscle spasms in her back, stiffness in her joints, and swelling in her back.[3] Ms. Green has a twelfth grade education[4] and has not worked since 2005.[5]

The record contains no explanation for Ms. Green's claimed disability onset date of November 1, 2010. However, the record shows that she consistently complained to her physicians of low back pain from August 10, 2010 to May 14, 2012.[6] During that time period, she was typically seen by her physicians on a monthly basis. She was diagnosed with lumbago, [7] which is nothing more than "an old popular term for lower back pain."[8] In other words, lumbago is "a descriptive term not specifying cause."[9]

A CT scan of Ms. Green's lumbar spine, conducted on March 5, 2012, showed multilevel spondylosis with no evidence of significant spinal stenosis or disc herniation.[10] Spondylosis is ankylosis (a stiffening of the joints)[11] of the vertebra or simply a degeneration of the spine.[12] Ms. Green was referred to an orthopedist, [13] but the record contains no evidence that she was ever seen by such a specialist. Her doctors advised her to sit only on straight chairs, [14] to walk thirty minutes per day, [15] to use a heating pad, [16] to get a rolling bag, [17] and to do stretching exercises.[18] She was also prescribed various medications for her back pain including Voltaren, [19] which is used to relieve pain, swelling (inflammation), and joint stiffness caused by arthritis;[20] salsalate, [21] which is a nonsteroidal anti-inflammatory drug ("NSAID") used to relieve pain;[22] and Tramadol, [23] which is used to treat moderate to moderately severe pain.[24] She was also prescribed Celebrex, [25] Flexeril, Naproxen, Percocet, [26] and Mobic.[27] Celebrex is used to treat the pain and swelling of arthritis;[28] Flexeril is used to treat muscle spasms;[29] Naproxen is an NSAID used to treat pain;[30] Percocet is a narcotic pain reliever used to treat moderate to severe pain;[31] and Mobic is another NSAID, which is used to treat the pain, stiffness, and swelling of arthritis.[32]

On July 16, 2011, Ms. Green was consultatively examined by Dr. Barnabas Fote.[33] Dr. Fote noted that Ms. Green complained of muscle spasms in her back as well as a constant stabbing pain in the low back without any radiation. Ms. Green described to Dr. Fote the conservative treatment she had previously undergone and told Dr. Fote that getting up from a seated position aggravates her symptoms while nothing specific alleviates her pain. Dr. Fote observed that Ms. Green was able to walk into and out of the examination room without assistance and without the use of an assistive device. However, he also observed that she walks with a slight limp. Dr. Fote found that the deep tendon reflexes and strength in her lower extremities were normal. He found no skin color changes, varicosities, ulcerations, claudication, edema, or ankle tenderness. He did observe right paraspinal lumber tenderness around L3-L4. His diagnosis was a history of back pain. His assessment was that Ms. Green should be able to sit and stand as tolerated but he did not provide a residual functional capacity evaluation. Dr. Fote did not give an opinion concerning whether Ms. Green is capable of sitting or standing for any specific time period nor did he give an opinion concerning whether she is capable of performing any specific level of work.

On July 27, 2011, it was determined that Ms. Green is not disabled.[34] The record does not contain evidence of any restrictions placed on Ms. Green's activities by her treating physicians or any evaluations of her residual functional capacity by her treating physicians. On April 26, 2012, however, Tammy Hebert-Briley, Ms. Green's treating nurse practitioner, completed a residual functional capacity questionnaire, which indicates that Ms. Green can sit for about three to four hours per day and stand for approximately three to four hours per day but will need unscheduled breaks every forty-five to sixty minutes throughout the work day.[35]

Ms. Green requested a hearing, [36] which was held on June 21, 2012 before Administrative Law Judge ("ALJ") W. Thomas Bundy.[37] At the hearing, Ms. Green described her back pain and explained that prolonged sitting increases her pain.[38] She also complained to her physicians that "it hurts for her to sit down for long periods of time."[39] At the hearing, she stated that, although she has good days and bad days, the bad days outnumber the good ones.[40] She also explained that some of the medications she has been prescribed have the undesirable side effect of making her sleepy and unable to function properly, [41] echoing a complaint she made to her physicians.[42]

The ALJ rendered an unfavorable decision on July 6, 2012.[43] The claimant requested review of the ALJ's ruling, but the Appeals Council denied review.[44] Accordingly, the ALJ's decision is the Commissioner's final decision for purposes of judicial review.[45] The claimant now argues that her back pain is disabling.

ASSIGNMENT OF ERRORS

The claimant argues that the Commissioner's ruling is erroneous for four reasons: (1) because the ALJ's residual functional capacity finding is not supported by substantial evidence and contains legal error; (2) because the ALJ failed to recognize her claimed inability to sit for long periods of time; (3) because the ALJ failed to consider her claim of adverse medication side effects; and (4) because the ALJ improperly relied exclusively on the Medical-Vocational Guidelines in determining that there are jobs that the claimant can perform.

STANDARD OF REVIEW

This Court's review of the Commissioner's decision that the claimant is not disabled is limited to determining whether the decision was supported by substantial evidence and whether the proper legal standards were applied in reaching the decision.[46] If the Commissioner's findings are supported by substantial evidence and the decision comports with relevant law, the decision must be affirmed.[47] Substantial evidence is more than a mere scintilla and less than a preponderance.[48] A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.[49] Finding substantial evidence does not involve a search of the record for isolated bits of evidence that support the Commissioner's decision; instead, the entire ...


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