United States District Court, W.D. Louisiana, Lafayette Division
MEMORANDUM RULING
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
Before
the Court is an appeal of the Commissioner's finding of
non-disability. In accordance with the provisions of 28
U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties
consented to have this matter resolved by the undersigned
Magistrate Judge (Rec. Doc. 7-2), and this matter was
referred to the undersigned Magistrate Judge for all
proceedings, including the entry of judgment (Rec. Doc. 7).
Considering the administrative record, the parties'
briefs, and the applicable law, the Commissioner's
decision is affirmed.
Administrative
Proceedings
The
claimant, Rose Marie Soileau, fully exhausted her
administrative remedies before filing this action. She filed
an application for disability insurance benefits
(“DIB”), alleging disability beginning on April
21, 2011.[1] Her application was denied.[2] She requested a
hearing, [3] which was held on February 26, 2014 before
Administrative Law Judge Carol L. Latham.[4] The ALJ issued a
decision on May 21, 2014, [5] concluding that the claimant was not
disabled within the meaning of the Social Security Act from
April 11, 2011 through the date of the decision. The claimant
asked for review of the decision, [6] but the Appeals Council
concluded that there was no basis for review.[7] Therefore, the
ALJ's decision became the final decision of the
Commissioner for the purpose of the Court's review
pursuant to 42 U.S.C. § 405(g). The claimant then filed
this action, seeking review of the Commissioner's
decision.
Summary
of Pertinent Facts
The
claimant was born on August 21, 1959.[8] At the time of the ALJ's
decision, she was fifty-four years old. She obtained a high
school equivalency diploma, [9] completed two years of vocational
training in medical transcription, [10] and has relevant work
experience as a Medicaid biller, secretary, receptionist, and
transcriptionist in a hospital and in doctors'
offices.[11] She alleges that she has been disabled
since April 21, 2011[12] due to back surgery, knee surgery,
mitral valve prolapse, aortic spasms, stomach pain,
arthritis, memory problems, depression, and a cervical disk
fusion that makes her unable to keep her head down for more
than an hour.[13]
On
January 11, 2011, the claimant saw Dr. M. Lawrence Drerup of
Alexandria Neurosurgical Clinic for a neurosurgical
consultation.[14] She reported that she had experienced
mild neck discomfort with some numbness and tingling in her
right arm for about five years, which became severe after
wrapping Christmas presents on December 10, 2010. She
described pinching, hurting, sharp pain and pressure,
extending from her lower cervical spine into the
interscapular region and extending up into the occipital
region, provoking headaches. She complained of daily
headaches since the onset of pain. She denied any new
numbness, tingling, or weakness in her arms but had
persistent right arm tingling in a C7 dermatomal pattern as
well as intermittent weakness in her left arm. She rated her
pain as 2 out of 5 and stated that her pain worsens with
activity and driving. She complained of severe pain when
turning her head from side to side and stated that this
causes a headache. She was treated with analgesics and a
Prednisone dosepak, which improved her pain for about one
week, but the pain returned and was worsening. In addition to
neck pain, the claimant reported stomach pain, urinary stress
incontinence, constipation, thyroid problems, mitral valve
prolapse, depression, sleep apnea, a nervous stomach,
gallbladder trouble, and asthma. She reported having had
tonsil and adenoid surgery, thyroidectomy, cholecystectomy,
appendectomy, hysterectomy with removal of the fallopian
tubes and ovaries, Ceasarean section, and lumbar spine
surgery.
Dr.
Drerup's physical examination of the claimant showed
decreased strength in her left biceps and decreased triceps
reflexes. Hoffman's sign was present in her right arm.
Dr. Drerup noted that an MRI of the cervical spine performed
on December 13, 2010 showed a large disc herniation at ¶
6-7. Following discussion, the claimant indicated that she
wanted to proceed with surgery. Preganglionic nerve
conduction studies of the arms were performed, which were
normal.
A
cervical MRI was obtained on January 20, 2011 at Central
Louisiana Surgical Hospital.[15] The MRI showed multilevel
degenerative disc disease with a left paracentral disc
extrusion at the C6-7 level, causing severe spinal canal
stenosis and mild deformity of the spinal cord as well as
mild spinal canal stenosis at ¶ 5-6.
The
claimant again saw Dr. Drerup on January 20,
2011.[16] He reviewed the MRI findings. His plan
was to perform an anterior cervical discectomy and fusion at
¶ 6-7 with anterior cervical fixation. The surgery was
performed on January 26, 2011, [17] and the claimant was
discharged from the hospital with a prescription for Lorcet
Plus and instructions to follow up with Dr. Drerup in a week.
The
claimant returned to Dr. Drerup on February 10,
2011.[18] She indicated that she had done quite
well since surgery and had no neck or arm pain. Range of
motion in the cervical spine was mildly limited in lateral
rotation bilaterally but was otherwise unremarkable. X-rays
of the cervical spine showed the spinal fusion.
The
claimant saw Dr. Drerup again on March 24,
2011.[19] X-rays showed a solid fusion, and the
claimant reported only mild posterior cervical soreness.
Voltaren Gel was prescribed for that complaint.
On
December 14, 2011, the claimant underwent arthroscopic
surgery on her right knee, following failed conservative
treatment including two injections.[20]
The
record contains no evidence that the claimant visited Dr.
Drerup between March 2011 and February 2013, a period of
almost two years. When the claimant returned to Dr. Drerup on
February 7, 2013, [21] she reported intermittent, progressive,
lower posterior cervical pain radiating into her right arm
and hand with tingling and numbness of her left hand but no
left arm pain. She stated that her symptoms began two to
three months earlier after lifting a grandchild and affected
her sleep. X-rays showed a stable postsurgical cervical spine
and mild degenerative changes at ¶ 4-5 and C5-6. Her
gait and posture were normal, there were no paraspinal muscle
spasms, and her strength and sensation were normal in both
arms. Dr. Drerup diagnosed status post anterior cervical
discectomy and fusion at ¶ 6-7 with a solid anterior
cervical fixation, posterior cervical pain with bilateral
upper extremity sensory changes of unclear etiology with
known mild cervical spondylosis at ¶ 5-6, history of
mitral valve prolapse, status post lumbar spine procedure
performed many years ago, chronic use of aspirin, and a
stated allergy to Sulfa drugs. He planned to obtain
preganglionic nerve conduction studies of her arms and an MRI
of the cervical spine.
The
cervical MRI obtained on February 18, 2013[22] showed
interval anterior discectomy at ¶ 6-7 with relief of
central stenosis. It also showed degenerative changes at
other levels with facet arthropathy but no significant
stenosis. The EMG of the same date was normal.[23]
On
February 26, 2013, the claimant was examined by Dr. Michael
A. Hall at the request of Disability Determination
Services.[24] The claimant gave Dr. Hall a detailed
history including lumbar spine surgery in 2001, cervical
spine surgery in 2011, right knee surgery in 2011, a
diagnosis of mitral valve prolapse in 1992, ulcers, nervous
stomach, a diagnosis of major depressive disorder in 2007 for
which she takes medication, chest pain, and spasms of the
aorta. She stated that in the previous six to twelve months,
she had no lumbar problems but subjective crepitus in her
posterior cervical spine with sharp cramping pain and
radiation to the arms, greater on the right than the left.
She stated that she had an MRI on February 18, 2013 and was
scheduled for an EMG. Physical examination revealed a normal
range of motion in the lumbrosacral spine and cervical spine,
appropriate strength in the upper and lower extremities,
normal fine and gross dexterity, and no evidence of sensation
or motor abnormality in the upper or lower extremities. Dr.
Hall also found that the claimant had a normal range of
motion in both knees without tenderness to palpation. The
claimant was able to bear weight on her toes and heels and to
do heel-to-toe maneuvers, spinning, and squatting. Dr. Hall
did not detect an auscultative murmur upon examination of the
claimant's heart, and he found no end-organ damage
secondary to her mitral valve prolapse. Dr. Hall detected no
enlargement of the claimant's stomach, no rebound,
guarding, or fluid waves during examination. He also found no
clinical evidence of memory loss. The claimant told Dr. Hall
that she can dress and feed herself, can stand for thirty
minutes at a time and for four hours of a work day, can walk
on level ground for twenty minutes, and can sit for thirty
minutes at a time. She stated that she can lift twenty
pounds, can drive for two hours, can sweep, shop, mop, climb
stairs, vacuum, cook, and do dishes. Dr. Hall concluded that
there was no clinical evidence of a decrease in functionality
secondary to the claimant's alleged impairments.
Two
days later, on February 28 2013, the claimant returned to Dr.
Drerup.[25]She complained of low posterior cervical
pain radiating into the right trapezius, the right shoulder,
the posterior aspect of her right upper arm, and the lateral
aspect of her right forearm and thumb. She also reported
numbness and tingling in her right hand primarily affecting
the thumb. She stated that her symptoms worsened when lying
supine or working overhead, and the pain affected her sleep.
Her gait and posture were normal, there was no paraspinal
muscle spasm, strength in her arms was normal, and the nerve
conduction studies were normal. Dr. Drerup's plan was to
perform a diagnostic and therapeutic selective nerve root
block at ¶ 6. The nerve root block was performed on
March 8, 2013.[26]
At the
claimant's next visit with Dr. Drerup on April 4, 2013,
she reported that she no longer had neck or right arm pain
but still had numbness in her right hand. The numbness was
more pronounced at night and affected her sleep patterns.
The
claimant returned to Dr. Drerup's office on June 6,
2013.[27] She was continuing to experience
numbness and tingling in her right hand. Dr. Drerup noted
that an EMG and nerve conduction study of the arms performed
on May 16, 2013 showed severe and significant right carpal
tunnel syndrome and mild carpal tunnel syndrome on the left.
He also noted a positive Phalen's sign and a positive
Tinel's sign. Dr. Drerup recommended that the claimant
use bilateral wrist splints. His diagnoses were: status post
anterior cervical discectomy and fusion C6-7 with anterior
cervical fixation, C6 radiculopathy right worse than left
secondary to mild cervical spondylosis at ¶ 5-6
(improved with selective root block at ¶ 6 bilaterally),
history of mitral valve prolapse, status post lumbar spine
procedure performed many years ago, chronic use of aspirin,
stated allergy to Sulfa drugs, severe carpal tunnel syndrome
on the right, and mild carpal tunnel syndrome on the left.
On
February 26, 2014, the claimant testified at a hearing
regarding her symptoms and her medical treatment. At that
time, she was taking the following prescription medications:
Protonix and Reglan for her stomach, Synthroid for her
thyroid, Norvasc and Toprol for mitral valve prolapse, Buspar
for anxiety, Effexor for depression, Estrotest for hormones,
Vitamin E for breast problems, Aspirin for her heart,
Ibuprofen as needed for pain, Celebrex as needed for
arthritis, and Imetrex as needed for migraine headaches.
The
claimant testified that she returned to work as a Medicaid
biller for a hospital following cervical spine surgery but
was unable to perform her job duties, which included
extensive use of a computer to enter data, typing, and using
the telephone. She stated that holding the telephone, typing,
writing, and holding her head down to read and type caused
neck pain and headaches. Although she altered her work
station at her own cost by raising her monitor, using a stand
for her papers, and slanting her keyboard, these changes
resulted in only minor improvement in her symptoms. She tried
using a speakerphone, but this disrupted her coworkers, and
her employer did not offer her a headset. Her productivity
slowed, and she took more frequent breaks. Headaches
interfered with her ability to stay on task, and she had to
leave work early and miss work due to migraine headaches.
Lying down and applying an ice pack to her neck after work
were helpful, but she said her doctor told her that the
problems she was having at work were an expected effect of
the cervical surgery because keeping her head down puts
pressure on the fusion site. After six to eight weeks, she
concluded that she was unable to do the job and voluntarily
terminated her employment.
The
claimant reported that, since leaving work, she lies down for
approximately one hour most days to help alleviate neck pain;
when she does not, her neck pain increases. She explained
that driving for more than thirty to forty-five minutes is
painful, and that she cannot turn her head from side-to-side
but must turn her whole body instead. She reportedly
purchased a recliner with specific pillows to hold her head
up. She testified that any type of activity can trigger neck
pain, so she limits her activities to no more than an hour in
length. She still does her housework, but had to acquire a
lightweight vacuum cleaner, a different style of mop, and a
lighter purse. She still does her grocery shopping but
carries only a few light bags at a time. She stated that neck
pain interrupts her sleep, and stress causes chest pain due
to mitral valve prolapse. She stated that the nerve block
injection “helped a good bit” but lasted for only
three months. She testified that the nerve block did not help
her to such an extent that she would be capable of performing
her past work. She testified that she has carpal tunnel
syndrome in her right hand, which goes numb and is painful.
She stated that she takes medication for depression and
anxiety but was recently able to reduce the dosages of both
of those medications. She avoids narcotic medication and
primarily takes Ibuprofen for pain.
Analysis
A.
Standard of Review
Judicial
review of the Commissioner's denial of disability
benefits is limited to determining whether substantial
evidence supports the decision and whether the proper legal
standards were used in evaluating the evidence.[28]
“Substantial evidence is more than a scintilla, less
than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”[29] Substantial evidence “must do more
than create a suspicion of the existence of the fact to be
established, but ‘no substantial evidence' will
only be found when there is a ‘conspicuous absence of
credible choices' or ‘no contrary medical
evidence.'”[30]
If the
Commissioner's findings are supported by substantial
evidence, they are conclusive and must be
affirmed.[31] In reviewing the Commissioner's
findings, a court must carefully examine the entire record,
but refrain from re-weighing the evidence or substituting its
judgment for that of the Commissioner.[32] Conflicts in
the evidence[33] and credibility
assessments[34] are for the Commissioner to resolve, not
the courts. Four elements of proof are weighed by the courts
in determining if substantial evidence supports the
Commissioner's determination: (1) objective medical
facts, (2) diagnoses and opinions of treating and examining
physicians, (3) the claimant's subjective evidence of
pain and disability, and (4) the claimant's age,
education, and work experience.[35]
B.
Entitlement to Benefits
The
Disability Insurance Benefit (“DIB”) program
provides income to individuals who are forced into
involuntary, premature retirement, provided they are both
insured and disabled, regardless of indigence.[36] A person is
disabled “if he is unable 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 twelve
months.”[37] A claimant is disabled only if his
physical or mental impairment or impairments are so severe
that he is unable to not only do his previous work, but
cannot, considering his age, education, and work experience,
participate in any other kind of substantial gainful work
which exists in significant numbers in the national economy,
regardless of whether such work exists in the area in which
the claimant lives, whether a specific job vacancy exists, or
whether the claimant would be hired if he applied for
work.[38]
C.
Evaluation Process and Burden of Proof
The
Commissioner uses a five-step inquiry to determine whether a
claimant is disabled. This process requires the ALJ to
determine whether the claimant (1) is currently working; (2)
has a severe impairment; (3) has an impairment listed in or
medically equivalent to those listed in the Social Security
regulations; (4) is able to do the kind of work he did in the
past; and (5) can perform any other work.[39]
Before
going from step three to step four, the Commissioner assesses
the claimant's residual functional capacity[40] by
determining the most the claimant can still do despite his
physical and mental limitations based on all relevant
evidence in the record.[41] The claimant's residual
functional capacity is used at the fourth step to determine
if he can still do his past relevant work and at the fifth
step to determine whether he can adjust to any other type of
work.[42]
The
claimant bears the burden of proof on the first four steps;
at the fifth step, however, the Commissioner bears the burden
of showing that the claimant can perform other substantial
work in the national economy.[43] This burden may be satisfied
by reference to the Medical-Vocational Guidelines of the
regulations, by expert vocational testimony, or by other
similar evidence.[44] If the Commissioner makes the necessary
showing at step five, the burden shifts back to the claimant
to rebut this finding.[45] If the Commissioner determines that
the claimant is disabled or not disabled at any step, the
analysis ends.[46]
D.
The ALJ's Findings and Conclusions
In this
case, the ALJ determined, at step one, that the claimant has
not engaged in substantial gainful activity since April 21,
2011.[47] This finding is supported by substantial
evidence in the record.
At step
two, the ALJ found that the claimant has the following severe
impairments: cervical degenerative disc disease/spondylosis
and radiculopathy, status post anterior cervical discectomy
and fusion at ¶ 6-7, carpal tunnel syndrome, a history
of mitral valve prolapse, torn meniscus, and status post
right knee surgery.[48]This finding is supported by substantial
evidence in the record.
At step
three, the ALJ found that the claimant has no impairment or
combination of impairments that meets or medically equals the
severity of a listed impairment.[49] The claimant does not
challenge this finding.
The ALJ
found that the claimant has the residual functional capacity
to perform light work except that her work should be limited
to no more than occasional reaching overhead with bilateral
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