United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
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 affirmed.
claimant, Ray Anthony Malveaux, fully exhausted his
administrative remedies prior to filing this action in
federal court. The claimant filed an application for
disability insurance benefits (“DIB”) and an
application for supplemental security income benefits
(“SSI”), alleging disability beginning on June
28, 2011. His applications were
denied. The claimant requested a hearing,
which was held on April 21, 2014 before Administrative Law
Judge Kim A. Fields. The ALJ issued a decision on June 10,
2014,  concluding that the claimant was not
disabled within the meaning of the Social Security Act
(“the Act”) from June 28, 2011 through the date
of the decision. The claimant asked for review of the
decision, but the Appeals Council concluded on September 4,
2014, that no basis existed for review of the ALJ's
decision. 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
of Pertinent Facts
claimant was born on October 6, 1974. At the time of the ALJ's
decision, he was 36 years old, defined as a younger
individual under the Act. He has at least a high school
education and received a Graduate Equivalency Degree
(GED). He has past relevant work experience as a
construction and oil field laborer and
alleges that he has been disabled since June 28,
2011 due to back pain and anxiety, depression
and panic attacks.
25, 2011, Mr. Malveaux was evaluated by Paul E. Fenn, M.D.,
after experiencing low back pain when he picked up on a jet
hose while working as a roustabout. T.250. Dr.
Fenn's report indicates he would treat the claimant's
injury as a lumbar strain and prescribed Motrin and Tylenol.
29, 2011, the claimant was treated by John Rainey, M.D., his
primary care provider, for complaints of back and shoulder
pain. T.265-266. Dr. Rainey's assessment was
lumbar strain. He referred the claimant to physical therapy
and provided an injection of Toradol. T.266.
21, 2011, the claimant was examined by orthopedic surgeon
George Williams, M.D. on referral from the workers'
compensation insurer. At that time, the claimant complained
of back pain which had “progressively increased”
since his June 25, 2011 injury. T.279-281. Dr.
Williams' examination revealed positive straight leg
raise testing on the left and tender SI joints bilaterally;
he ordered a lumbar MRI. T.280-281.
August 9, 2011 MRI of the lumbar spine revealed edema in the
subcutaneous tissues of the posterior back, minimal to mild
annular bulging at ¶ 3-L4 and L4-5, as well as disc
desiccation at ¶ 5-S1 with disc space narrowing
posteriorly, T2 hyper-intense zone in the posterior disc, a
broad based central/left paracentral disc protrusion abutting
the left S1 nerve and mild bilateral neural foraminal
August 30, 2011, Dr. Williams assessed the claimant with a
disc protrusion with annular tear at ¶ 5-S1 with
compression of the S1 nerve root and degenerative disc
disease at ¶ 4-L5; he recommended physical therapy.
T.282. Dr. Williams placed him on a no-work status.
T.282. On October 18, 2011, David L. Vidrine, P.T.,
informed Dr. Williams that the claimant had not received
significant benefit from physical therapy. T.296.
Dr. Williams continued the claimant on a no-work status and
recommended a lumbar epidural steroid injection (LESI).
T.284. A LESI was administered by Steve Wyble, M.D.
on December 2, 2011. T.274-277.
December 13, 2011, Dr. Williams' follow up examination
revealed pain with palpation at the lower lumbar region,
limited range of motion of the lumbar spine, and numbness in
the left S1. He recommended a repeat LESI.
T.286-287. On January 23, 2012, Dr. Williams
administered a LESI. T.288-289.
January 13, 2012, Mr. Malveaux was evaluated by orthopedic
surgeon Zoran Cupic, M.D., whose examination revealed
“severe low back distress, ” some loss of a
normal lumbar lordosis, muscle spasms on both sides,
tenderness in the lower lumbar and lumbosacral area,
decreased lumbar range of motion, antalgic limp on the left
side, difficulty with heel and toe walking, and positive
bilateral straight leg raise testing. Dr. Cupic diagnosed
lumbosacral strain and possible herniated nucleus pulposis.
March 5, 2012, Mr. Malveaux returned for a follow-up visit
with Dr. Cupic and reported that the second LESI provided
relief for approximately 4 days. T.324. Dr.
Cupic's examination results on that day as well as on May
30, 2012 were substantially similar to his findings on
January 13, 2012. T.322-325.
an examination on July 11, 2012, Dr. Cupic noted that the
claimant's condition had gotten worse and that he was in
moderately severe low back distress. T.319. He noted
lumbar muscle spasm, reduced lumbar range of motion, and
positive straight leg testing bilaterally. T.319.
Dr. Cupic opined that Mr. Malveaux was “unable to go to
work at this point.” T.320. On October 30,
2012, Dr. Cupic's physical examination noted that the
claimant was “in moderately severe low back
distress.” T.316. Dr. Cupic noted tenderness
of the SI joints and lumbosacral area, limited range of
motion of the lumbar spine, and significant muscle spasms.
leg raising test was still positive on the left at about 40
degrees and on the right at about 50-60 degrees.
T.317. On November 9, 2012, Dr. Cupic performed
lumbar fusion surgery at the claimant's L5-S1 joint.
February 12, 2013, a non-examining State agency review
physician, Timothy Honigman, M.D., reviewed the available
medical evidence and assessed the claimant's residual
functional capacity (RFC). T.71-73, 359. Dr.
Honigman opined that the claimant had the residual functional
capacity to occasionally lift or carry 20 pounds, frequently
lift or carry 10 pounds, stand or walk 6 hours in an 8 hour
day, sit 6 hours in an 8 hour day, and occasionally climb
ramps/stairs, climb ladders/ropes/scaffolds, balance, stoop,
kneel, crouch, and crawl. T.72.
March 1, 2013, the claimant was treated at Opelousas General
Hospital for complaints of chest pain. He was given Toradol
and prescribed Xanac (Alprazolam) for anxiety and
Hydrocodone-Acetaminophen for pain.. T.362-383.
March 6, 2013, he was treated at Oakdale Community Hospital
for complaints of chest pain. The medical notes indicated
that he “ran out of pain med and anxiety med  from
Dr. Cupic.” The clinical impression was anxiety and he
was prescribed Xanax and Lorcet (Hydrocodone-Acetaminophen).
claimant presented for a follow-up visit with Dr. Cupic on
March 12, 2013. At that time he complained that the pain in
the surgical site, L5-S1, had gotten worse and he had more
neck pain. He reported that he had to go to the emergency
room twice because of anxiety attacks. T. 404. Dr.
Cupic noted the claimant had gained weight such that he could
no longer fit into his back brace. T. 405. X-rays of
the lumbosacral spine revealed the fusion and bone graft to
be in good position with no obvious reason for pain. T.
406. Dr. Cupic noted that Mr. Malveaux had not had any
physical therapy at all and ordered that he increase his
activities and physical therapy for the back. He also
recommended that the claimant see a psychiatrist, a
psychologist, or a neuropsychologist for help with his panic
March 21, 2013, the claimant presented at Mercy Regional
Medical Center (“Mercy Regional”) with complaints
of chest pain. The medical notes indicate that he did not
bring his Xanax and Lortab with him. The impression was panic
disorder and the claimant was given Xanac and prescribed
Xanax and Celexa for anxiety. T.413-415.
March 26, 2013, Mr. Malveaux saw Dr. Rainey for follow-up
treatment of anxiety after his visit to Mercy Regional.
T.463. The claimant's history indicated no
exercise and that he was a ½ pack per day smoker. Dr.
Rainey's examination indicated that the claimant's
psychiatric evaluation showed “good judgment... normal
mood and affect and active and alert... orientation to time,
place and person” and recent and remote memory normal.
His musculoskeletal exam indicated joint, bone and muscle
tenderness. Dr. Rainey's assessment was panic disorder
without agoraphobia and displacement of thoracic or lumbar
intervertebral disc without myelopathy; he prescribed Xanax
(Alprazolam), Celexa (Citalopram), and Elavil (Amitriptyline)
for the panic disorder. T.464-465.
April 8, 2013, the claimant was again treated at Mercy
Regional for complaints of chest pain and anxiety. T.
413. The notes indicate “Positive for anxiety.
panic d/o out of xanax.” T.419. The assessment
indicated he was in no apparent distress, was comfortable
with appropriate behavior and that his “symptoms have
improved.” T. 414-416. He was assessed with
panic disorder and generalized anxiety disorder and given
April 9, 2013, after being treated at Mercy Regional, the
claimant saw Dr. Rainey again for panic attacks. T.
466-468. Dr. Rainey's assessment remained the same
and he prescribed Amitriptyline and Alprazolam.
August 14, 2013, the claimant saw Nurse Practitioner (NP)
Melissa Vallet in a follow-up visit to Dr. Rainey,
complaining of sleep problems and trouble paying attention.
He indicated he was seen in the Opelousas General Hospital
E.R. on July 9, 2013 complaining that the Amitryptyline was
not helping. The claimant was given Ativan as well as
prescriptions for Xanax and Trazodone. He further T.
485. His history indicated he was engaged in moderate
exercise at Anytime Fitness. His examination remained
unchanged as to constitutional and psychiatric. His
musculoskeletal examination noted that he “uses a cane
to ambulate.” He was assessed with insomnia and
prescribed Trazodone. T.487.
October 10, 2013, the claimant attended a follow-up visit
with NP Vallet. No history or examination changes were noted
at that time and she increased his dosage of Trazodone.
February 27, 2014 follow-up visit, Mr. Malveaux was examined
by NP Vallet with complaints of sinus problems, muscle aches,
joint and back pain, numbness but no weakness, depression at
times and anxiety. T.494. NP Vallet prescribed
Zythromax and sinus remedies, hydrocodone and Neurontin
March 27, 2014 follow-up, the complainant reported that he
“still has some panic attacks while taking
Alprazolam.” T.496-498. His history indicated
he continued moderate exercise at Anytime Fitness. T.
497. NP Vallet's examination noted that his
constitutional, psychiatric and musculoskeletal examination
was unchanged and that he was “doing well on current
treatment plan will continue.” T.498.
April 21, 2014 hearing on this matter, Dr. George Robert
Smith testified as a medical expert. After summarizing the
claimant's treatment by Dr. Cupic and Dr.
T. 50-52, Dr. Smith stated that the claimant's
pain would be a disabling factor and the claimant should be
limited to lifting no more than “10 pounds on a
frequent basis, maybe occasionally 20, " “Sitting
would be limited by the necessity of his being able to change
positions as he needed to do; and “he would not be good
on a job that required a lot of stooping, bending, squatting
because these will put more stress on his back.” T.
53. The ALJ gave “some weight” to Dr.
Smith's opinion. T. 33.
Standard of Review
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.
“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.” 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
Commissioner's findings are supported by substantial
evidence, then they are conclusive and must be
affirmed. 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. Conflicts in
the evidence and credibility assessments 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