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Bellard v. Berryhill

United States District Court, W.D. Louisiana, Lake Charles Division

January 8, 2018


          TRIMBLE, JUDGE


          Joseph H.L. Perez-Montes United States Magistrate Judge

         I. Background.

         A. Procedural History

         Gary Lynn Bellard (“Bellard”) filed an application for Social Security disability insurance benefits (“DIB”) on February 1, 2014, alleging a disability onset date of July 15, 2013 (Doc. 7-1, p. 133/341) due to thoracic back injury, spine, ribs, nerve damage; spinal arthritis; degenerative disc disease; depression, dislocated clavicle injury; cervical fusion; and back scapula surgery (Doc. 701, p. 150/341).

         A de novo hearing was held before an Administrative Law Judge (“ALJ”) on April 9, 2015, at which Bellard appeared with his attorney and a vocational expert (“VE”) (Doc. 7-1, pp. 28-29). The ALJ found that Bellard last met the insured status requirement for DIB on December 31, 2013 (Doc. 7-1, p. 17/341). The ALJ further found that, although Bellard suffers from a severe impairment of herniated disc at ¶ 10-11, he had the residual functional capacity to perform the full range of medium work on the date he was last insured (Doc. 701, pp. 17, 19/341). The ALJ concluded that Medical-Vocational Guidelines Rule 203.22 directed a finding of “not disabled” (Doc. 7-1, p. 25/341).

         Bellard requested a review of the ALJ's decision, but the Appeals Council declined to review it (Doc. 7-1, p. 8/341). The ALJ's decision became the final decision of the Commissioner of Social Security (“the Commissioner”).

         Bellard next filed this appeal for judicial review of the ALJ's decision. Bellard raises the following issues for review on appeal (Doc. 10):

1. Did the ALJ fail to develop the medical record by not requesting further clarification from the treating physicians when it was determined that their reports did not fully address a critical issue?
2. Was the ALJ's decision supported by substantial evidence when she used the opinion of a non-treating, non-examining State consultant instead of the treating physicians?
3. Should the ALJ have recognized the retrospective evidence (evidence developed after Date Last Insured) which was the strongest evidence on a critical issue?

         The Commissioner filed a response (Doc. 11), to which Bellard replied (Doc. 12). Bellard's appeal is now before the Court for disposition.

         B. Medical Records

         In November 2011, Bellard was examined by Dr. Susan Ieyoub (Doc. 7-1, p. 266/341). Bellard reported he had fractured two ribs (with inflammation) near the insertion by the spine, in a 2009 car accident, and had arthritic changes, which caused pain (Doc. 7-1, pp. 222, 259, 266/341). Bellard had a steroid injection that did not relieve his pain, and two temporary nerve blocks that made him feel better overall by reducing the intensity of his pain (Doc. 7-1, p. 266/341). Bellard reported having to limit his work due to his symptoms (Doc. 7-1, p. 266/341). Bellard was 5'7” tall and weighed 216 pounds, and his blood pressure was 132/82 (Doc. 7-1, p. 266/341). Dr. Ieyoub diagnosed malaise, hypertension, mixed hyperlipidemia, and backache NOS (Doc. 7-1, p. 267/341.

         In May 2012, Dr. Ieyoub noted Bellard had ongoing thoracic pain, so they the discussed the possibility of a permanent nerve block (Doc. 7-1, p. 259/341). In December 2012, Bellard reported a nerve block administered in November had lasted only nine days, but his best nerve block had lasted about four months (Doc. 7-1, p. 256/341). Bellard said he had “shock-like” pain about 50 times a day (Doc. 7-1, p. 256/341). Bellard also said he had thoracic pain with deep breaths and changes in position, so pain awakened him at night if he changed position (Doc. 7-1, p. 256/341).

         In December 2012, Bellard had another nerve block that relieved his pain until about March, when his pain returned, but this time without radiculopathy (Doc. 7-1, p. 253/341). Bellard considered getting another injection to see if he would have complete relief (Doc. 7-1, p. 253/341).

         In September 2013, Dr. Ieyoub again evaluated Bellard's complaints of thoracic pain (Doc. 7-1, p. 220/341). Bellard reported right-sided paraspinous pain in his low thoracic region (Doc. 7-1, p. 222/341). The pain kept him up at night (Doc. 7-1, p. 222/341), and he was experiencing anxiety, depression, irritability, and stress (Doc. 7-1, p. 250/341). Bellard had moderate tenderness at ¶ 8, T9, and T10 (Doc. 7-1, p. 222/341), and posterior thoracic pain on full right lateral rotation (Doc. 7-1, p. 222/341). Bellard had received multiple injections including nerve blocks that only helped for a short period of time (Doc. 7-1, p. 213/341). Hydrocodone was also not giving him relief and he was unable to tolerate Cymbalta, so Dr. Ieyoub prescribed a Fentanyl patch (Doc. 7-1, p. 250/341). A previous CT scan showed multiple levels of degenerative changes in his T-spine, the most notable of which was arthrosis on the right at ¶ 10 (Doc. 7-1, p. 222/341).

         Bellard next had an MRI examination of his thoracic spine in September 2013 that showed very small disc bulges and mild facet arthropathy scattered along the thoracic spine with a tiny posterior right paramedian disc herniation at ¶ 10-T11 (Doc. 7-1, p. 213/341). There was no spinal canal narrowing, no cord deformation, and no significant foraminal narrowing (Doc. 7-1, p. 213/341). The MRI also showed spondylotic changes and facet arthropathy along the visualized lower cervical spine with a Grade I retrolisthesis of C6 upon C7 that caused mild spinal canal narrowing but no cord deformation (Doc. 7-1, p. 213/341). Following the MRI, Dr. Ieyoub found it was likely his pain was from the bony arthrosis with overgrowth stemming from his previous rib fractures (Doc. 7-1, p. 226/341). Hydrocodone was no longer giving Bellard relief, so Dr. Ieyoub prescribed a fentanyl patch (Doc. 7-1, p. 250/341) and discussed pain management (Doc. 7-1, p. 250/341).

         In October 2013, Bellard reported the fentanyl patch and Norco were relieving his pain somewhat (Doc. 7-1, p. 247/341). Bellard received a right T10 transforaminal epidural steroid injection for his right lumbar radiculopathy (Doc. 7-1, p. 216/341). However, steroid injections did not alleviate Bellard's pain (Doc. 7-1, p. 230/341). Dr. Ieyoub was unable to identify the source of his pain, but suspected intercostal nerve pain (Doc. 7-1, p. 230/341). Dr. Ieyoub diagnosed depression; insomnia; thoracic disc disorder; mixed hyperlipidemia; hypertension; backache; cardiac murmur; cardiac dysthythmia; malaise; and erectile dysfunction (Doc. 7-1, p. 245/341).

         In February 2014, Dr. Ieyoub noted Bellard's surgery consult had told him surgery was possible but there was no guarantee about the outcome (Doc. 7-1, p. 241/341). Bellard was taking hydrocodone as needed for pain (Doc. 7-1, p. 241/341). Bellard was 5'6”, weighed 222 pounds, and his blood pressure was 138/82 (Doc. 7-1, p. 242/341). Dr. Ieyoub found Bellard was suffering from depression; insomnia; mixed hyperlipidemia; hypertension; backache NOS; cardiac murmur; malaise; and erectile dysfunction (Doc. 7-1, p. 243/341).

         In August 2014, Dr. Esses (in Houston) carried out a right T10-11 decompressive laminectomy, and a discectomy was also performed on a large disc herniation (Doc. 7-1, pp. 296, 300, 334, 339/341). Dr. Esses noted there was very profound stenosis with nerve root compression, but the decompression was uncomplicated (Doc. 7-1, p. 334/341). Three weeks later, Bellard was doing better physically and mentally, and was tapering off his pain medication (Doc. 7-1, p. 300/341). After the staples were removed, Bellard developed a surgical site wound infection and a “sharp edge” sensation (Doc. 7-1, pp. 293, 296/341). After the infection resolved, the “sharp edge” sensation remained (Doc. 7-1, p. 293/341). Thoracic x-rays showed multilevel osteophytosis, degenerative changes of the visualized cervical spine, and a fusion at ¶ 4-5 (Doc. 7-1, p. 295/341).

         In September 2014, Bellard reported muscular pain in his back, and Dr. Esses recommended he start working out, including stretching (Doc. 7-1, p. 332/341).

         C. Administrative Hearing

         At his April 2015 administrative hearing, Bellard was 56 years old, and had been the working owner of a sheet metal air conditioning business for 15 years (Doc. 7-1, p. 34/341). Bellard was self-employed until 2009 (Doc. 7-1, p. 35/341). Bellard worked on air conditioning and refrigeration sheet metal, mostly for restaurant equipment (Doc. 7-1, p. 34/341). Bellard's work involved welding sheet metal and doing the whole spectrum of refrigeration work (Doc. 7-1, pp. 35-36/341). Bellard also did installation work for many years through a restaurant supply company (Doc. 7-1, p. 36/341). Bellard's work involved using dollies to move equipment and materials weighing several hundred pounds (Doc. 7-1, p. 36/341).

         Bellard testified that he lived with his wife and two children (Doc. 7-1, p. 35/341). Bellard completed high school and welding school (Doc. 7-1, p. 35/341).

         Bellard testified that he stopped working in 2009 because he was in a car accident and began having back problems (Doc. 7-1, p. 37/341). He continued to do some work, but could no longer install hoods or anything else heavy because he could no longer handle them (Doc. 7-1, p. 37/341). Bellard did some repair and service work on air conditioning and small jobs for restaurants until he had to quit working ...

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