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Malveaux v. U.S. Commissioner, Social Security Administration

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

March 13, 2017

MALVEAUX
v.
U.S. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          DOHERTY, JUDGE

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES 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 affirmed.

         Administrative Proceedings

         The 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.[1] His applications were denied.[2] The claimant requested a hearing, [3] which was held on April 21, 2014 before Administrative Law Judge Kim A. Fields.[4] The ALJ issued a decision on June 10, 2014, [5] 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.[6] 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 October 6, 1974.[7] 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).[8] He has past relevant work experience as a construction and oil field laborer and roustabout.[9]

         He alleges that he has been disabled since June 28, 2011[10] due to back pain and anxiety, depression and panic attacks.[11]

         On June 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. T.253.

         On June 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.

         On July 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.

         An 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 narrowing. T.269.

         On 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.

         On 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.

         On 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. T.326-330.

         On 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.

         During 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. T.316.

         Straight 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. T.298-301-303.

         On 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.

         On 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.

         On 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). T.387.

         The 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 attacks. T.406.

         On 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.

         On 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.

         On 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 Xanax. T.413-428.

         On 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. T.468.

         On 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.

         On 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. T.490.

         On his 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 (Gabapentin). T.495.

         On his 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.

         At the 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.

         Rainey, 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.

         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.[12] “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.”[13] 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.'”[14]

         If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed.[15] 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.[16] Conflicts in the evidence and credibility assessments are for the Commissioner to resolve, not the courts.[17] 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.[18]

         B. Entitleme ...


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