United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
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).
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).
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
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
3. Should the ALJ have recognized the retrospective evidence
(evidence developed after Date Last Insured) which was the
strongest evidence on a critical issue?
Commissioner filed a response (Doc. 11), to which Bellard
replied (Doc. 12). Bellard's appeal is now before the
Court for disposition.
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.
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).
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).
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).
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).
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).
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).
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).
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).
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.
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).
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 ...