United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA 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 reversed
and remanded for further administrative action.
claimant, Shawn B. Hicks, fully exhausted his administrative
remedies before filing this action in federal court. He filed
an application for disability insurance benefits
(“DIB”), alleging disability beginning on January
8, 2014 due to a back injury, depression, and
anxiety. His application was denied. He then requested
a hearing, which was held on February 18, 2016 before
Administrative Law Judge Thomas J. Henderson. The ALJ issued a
decision on March 8, 2016, concluding that the claimant was
not disabled within the meaning of the Social Security Act
from January 8, 2014 through the date of the
decision. The claimant asked the Appeals Council to
review the decision, but no basis for review was
found. The ALJ's decision thus 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 January 5, 1969. At the time of the ALJ's
decision, he was forty-seven years old. He graduated from
high school and attended college for two years without
obtaining a degree. He has relevant work experience as a shift
supervisor in a powder coatings manufacturing facility, as an
assistant supervisor in a food processing plant, and as a
finishing manager in an aluminum extrusion
plant. He alleged that he has been disabled since
January 2014 due to a back injury, depression, and
January 17, 2012,  the claimant saw his primary care
physician, family medicine practitioner Dr. Calvin White, in
follow up with regard to depression and bilateral hip pain.
He gave a history of having had gastric bypass surgery in
2001 and right hip surgery in 1998. He was described as an
alcoholic and reportedly drank six to seven beers per day. He
appeared to be in pain, his gait was slow and antalgic, he
had mild tenderness upon palpation of his lumbar area, and he
had a limited range of motion in both hips as well as mild
crepitation in his right knee. He complained of low back
pain, numbness and tingling in his left arm and hand, and
tremors in his hands. He was anxious, depressed, and
stressed. He complained of memory loss, suicidal ideation,
and withdrawn behavior. His problems were listed as
depression, anxiety syndrome, insomnia, hip pain,
essential/familial tremor, and Vitamin D deficiency. He was
prescribed Alprazolam for anxiety and Hydrocodone-
Acetaminophen for pain. He was already taking Pristiq for
February 10, 2012, Mr. Hicks visited Dr. David Clause at
Opelousas Orthopaedic Clinic,  complaining of pain at the
groin area of both hips, worse on the right than the left.
Dr. Clause did not observe a limp. The claimant's pulses
were intact, there were no motor or sensory deficits
distally, and he did not have positive straight-leg raise
tests while seated or supine. X-rays showed no evidence of
arthritic changes or stress fractures. Dr. Clause opined that
the pain was coming from the hips, but he was unsure as to
etiology. He ordered an MRI to rule out avascular necrosis.
Hicks followed up with Dr. White on March 1,
2012. Dr. White noted that the MRI ordered by
Dr. Clause failed to reveal any etiology for the hip pain.
The claimant was using Lortab, a narcotic pain reliever, as
necessary with minimal efficacy, and his complaints remained
the same. His problems included anxiety syndrome, insomnia,
alcoholism, hip pain, elevated blood pressure,
essential/familial tremor, Vitamin D deficiency, and abnormal
liver. Vitamin B3 was added to his medication regimen.
claimant again saw Dr. White on March 23, 2012 to get the
results of a lumbar spine CT scan, which showed broad-based
disc bulges from L3-4 through L5-S1 with moderate central
spinal canal and lateral recess stenosis as well as a
congenitally narrowed spinal canal. The CT scan also showed a
small central disc protrusion at the L5-S1 level with disc
material approximating the S1 nerve roots. Additionally,
there was ligamentum flavum hypertrophy extending from L3-4
through L5-S1. Dr. White added lumbar disc disease and lumbar
neuropathy to the claimant's problem list.
April 12, 2012, Mr. Hicks consulted Dr. George Raymond
Williams, an orthopaedic surgeon. His chief complaints were
back and right leg pain, and he also told Dr. Williams that
he had hip pain radiating to above his right knee. Dr.
Williams's assessments were lumbar back pain and lumbar
spinal stenosis, and he prescribed Mobic, rest, ice and heat,
and a stretching and strengthening program. He also referred
the claimant to physical therapy.
15, 2012, the claimant followed up with Dr. White,
reporting increased pain since starting physical therapy. His
medication dosages were adjusted. His problem list included
anxiety syndrome, essential/familial tremor, lumbar disc
disease, and lumbar neuropathy.
the claimant returned to Dr. Williams on July 24, 2012,
he reported that physical therapy had not relieved his pain.
Dr. Williams recommended that he continue with conservative
care and activities, and he recommended lumbar epidural
steroid injections (“LESI”). A week later, on
July 30, 2012, Dr. Williams administered the first LESI and
he prescribed Percocet for pain.
Mr. Hicks saw Dr. Williams again on September 11, 2012,
he reported two to three weeks of relief from the LESI but a
return of pain after that. Dr. Williams noted that the
claimant had a normal gait, pain with palpation at the lower
lumbar region, no visible atrophy, no triggers, no muscle
spasms, limited flexion and rotation at the lumbar spine,
pain with right hip internal rotation but negative straight
leg raise tests. He diagnosed lumbar back pain, lumbar
degenerative disc, lumbar spondylosis, and lumbar spinal
stenosis. He prescribed Lortab and planned a repeat LESI. The
claimant received a second LESI on September 24,
October 16, 2012,  the claimant told Dr. White that he had
been awakened approximately a week earlier by pain in his
left knee, ankle, wrist, and elbow, which was persisting in
the left knee. His gait was described as slow and antalgic.
He had a limited range of motion in both hips due to pain,
mild crepitation in both knees, mild lumbar tenderness, and
tremors. His problems included osteoarthritis in his knees,
lumbar disc disease, and lumbar neuropathy. He was to follow
up with Dr. Williams with regard to his back. A
Kenalog-Lidocaine injection was planned for his left knee.
Dr. White signed a form releasing him to return to work the
claimant saw Dr. Williams again on November 6,
2012. His condition was unchanged. He was
taking Lortab, Percocet, Norco, Alprazolam, Mobic, and
Pristiq. The plan was to repeat LESIs as needed.
claimant returned to Dr. White on February 4, 2013,
reporting increased insomnia and depression following the
recent death of his father. He had stopped taking Pristiq. He
denied illusions, memory loss, and suicidal ideation.
Cymbalta and Intermezzo were prescribed, and he was released
to return to work the next day.
Hicks saw Dr. Williams again on February 7,
2013. He reported that the effects of the LESI
had worn off but he wanted to continue with conservative
care. His only new complaint was an increase in lower
extremity muscle spasms. Flexeril was added to his
medications. The claimant saw Dr. Williams on February 18,
2013 for another LESI.
claimant's next appointment with Dr. White was on March
26, 2013.He reported continued pain and muscle
spasms although the muscle relaxant was helping a little. He
complained of having low energy, feeling disinterested,
trouble concentrating, insomnia, and anxiety. He stated that
he was taking Cymbalta as prescribed. The Cymbalta was
discontinued, and Viibryd was started. He was released to
return to work the next day.
claimant saw Dr. White again on April 12, 2013 to get lab
test results. Hypotestosteronemia (low testosterone) was
added to his problem list, and he was prescribed AndroGel.
21, 2013, the claimant returned to Dr.
Williams. At all prior appointments with Dr.
Williams, his gait had been described as not antalgic. This
time, however, the treatment note described his gait as
antalgic. Neurologic testing showed numbness on the right at
¶ 1-L5. The plan was for the claimant to try
chiropractic care and if that did not improve his symptoms,
an MRI would be obtained, and an L4/S5 decompression and
fusion would be considered.
18, 2013, the claimant saw Dr. Williams, again complaining of
back and right leg pain. Dr. Williams noted that his lower
extremity symptoms were worsening. The strength in his
gastrocnemius and anterior tibial muscles had decreased, and
he had numbness on the right correlating to lumbar nerves.
Dr. Williams noted that the claimant had failed all
conservative care, and he ordered a repeat MRI of the lumbar
spine, with a surgical recommendation to follow.
of the claimant's lumbar spine was obtained on July 23,
2013. It showed degenerative disc disease with
mild annular bulging at ¶ 10-T11; degenerative disc
disease at ¶ 3-L4 with mild annular bulging, a small
right foraminal disc protrusion, and a right foraminal
annular fissure abutting the right L3 nerve in the foramen;
degenerative disc changes at ¶ 4-L5 with mild annular
bulging and a left foraminal annular fissure; mild annular
bulging at ¶ 5-S1, and a congenitally narrow spinal
claimant saw Dr. White again on July 30, 2013,  complaining
that he woke up due to bilateral leg pain four days earlier.
A Vitamin B12 deficiency was added to his list of problems,
and his medications were adjusted.
claimant followed up with Dr. Williams on August 20, 2013,
and Dr. Williams recommended an L3-L5 posterior lumbar
decompression and fusion. Mr. Hicks indicated, however, that
he would like to postpone the procedure.
claimant returned to Dr. Williams on December 10,
2013. Dr. Williams observed him moving around
the office with guarded movements, noted that his gait was
antalgic, and noted that he complained of pain with palpation
at the lower lumbar region. Flexion, rotation, and extension
of his lumbar spine was limited. He had a positive sitting
straight leg raising test. Strength remained reduced in the
gastrocnemius and anterior tibial muscles, and neurological
sensory testing showed numbness on the right at ¶ 1-L5.
Dr. Williams noted that Mr. Hicks's pain was now
radiating to both legs and he was having tingling in his
lower digits. Due to the progression of the symptoms, the
claimant agreed to schedule surgery for January 8, 2014.
Flexeril and Norco were prescribed.
claimant had a preoperative evaluation with Dr. Williams on
January 2, 2014. It was noted that he had a normal gait,
no arm or leg length inequality, normal pulses, pain with
palpation at the lower lumbar region, no visible atrophy,
limited flexion and rotation of the lumbar spine, negative
sitting and supine straight leg raise tests, slightly
decreased strength in his quadriceps and anterior tibial
muscles, as well as numbness on the right at ¶ 1-L5.
Informed consent for the surgery was obtained.
claimant also saw Dr. White that same day. Dr. White
found him to be at low risk for intra-operative complications
and okayed him for the lumbar surgery.
January 8, 2014, Dr. Williams performed a posterior lumbar
interbody decompression and fusion at ¶ 3-L4-L5, and the
claimant was released from the hospital on January 11,
January 27, 2014,  Mr. Hicks told Dr. Williams that he was
experiencing uncontrolled muscle spasms not alleviated by
medication. However, X-rays showed the instrumentation to be
in a stable position. A different medication was prescribed.
claimant followed up with Dr. Williams on February 20,
2014. He was wearing a brace, he had mild soft
tissue pain with palpation at the lower lumbar region, his
scar had healed, his gait was normal, the range of motion in
his lumbar spine was limited, and straight leg raise tests
were negative. His muscle strength and neurological deficits
had returned to normal. X-rays showed that the
instrumentation appeared to be normal. Dr. Williams
encouraged Mr. Hicks to walk but advised him to avoid
bending, twisting, and lifting more than ten pounds.
Hicks saw Dr. Williams again on March 20, 2014. The treatment
note indicated that he moved around the office with a brace,
slowly changed positions from seated to standing, had mild
soft tissue pain with palpation at the lower lumbar region,
and had limited range of motion in all planes of the lumbar
spine. Dr. Williams also noted a mild increase in
consolidation of the fusion. Mr. Hicks was kept on no work
status but Dr. Williams indicated that this would be
reevaluated at the next visit. Dr. Williams advised the
claimant to engage in conservative activities and light
walking to facilitate his return to work. However, he was to
avoid bending, twisting, and lifting more than ten pounds.
claimant saw Dr. White on April 15, 2014. His chief
complaints were gastric bypass surgery, low testosterone,
insomnia, and low back pain. The diagnoses assigned were
essential/familial tremor, Vitamin D deficiency, lumbar
neuropathy, hypotestosteronemia, Vitamin B-12 deficiency, and
low back surgery. His medications were adjusted.
claimant returned to Dr. Williams on April 24,
2014. His physical examination was normal
except that the range of motion in his lumbar spine was
limited. He was advised to rest, apply ice and heat, follow
home stretching and strengthening programs, go to physical
therapy, and take his medications, which included two Norco
dosages, Percocet, Soma, Zanaflex, Flexeril, and Mobic.
claimant saw Dr. White on June 2, 2014. His chief
complaints were a history of alcoholism, low back pain, low
testosterone, anxiety, and pernicious anemia. He was
reportedly drinking much less. He was prescribed Vitamin
claimant saw Dr. Williams again on June 5,
2014. He complained of intermittent weakness
in his right leg and multiple falls. His lumbar pain was
tolerable with pain medication. Dr. Williams noticed his
tremor, and the claimant explained that it had worsened over
the previous eighteen months. Dr. Williams recommended an MRI
of the lumbar spine and referred the claimant to a
neurologist for evaluation of his tremor.
of the claimant's lumbar spine, obtained on June 12,
2014,  showed postoperative changes with
bilateral pedicle screws at the L3, L4, and L5 levels without
a definite recurrent disc protrusion or herniation at those
levels. It also showed minimal broad-based disc bulges at the
L3-4, L4-5, and L5-S1 levels, minimally indenting the ventral
19, 2014, Mr. Hicks returned to Dr. Williams,  with primary
complaints of right lower extremity weakness, tremors, and
involuntary falls. Dr. Williams noted an obvious tremor of
the claimant's left arm and weakness in the right
quadriceps muscle. The only medications he prescribed were
Xanax and Percocet. Dr. Williams recommended brain and
cervical spine MRIs, and he was awaiting a neurological
of the cervical spine obtained on June 24, 2014 showed
minimal broad-based disc bulges extending from the C3-4
through the C6-7 levels, minimally indenting the ventral
thecal sac without significant central spinal canal or neural
foraminal stenosis. An MRI of the brain, obtained the same
date, was normal except for extremely minimal chronic
bilateral maxillary and ethmoid sinusitis.
30, 2014, the claimant saw a neurologist, Dr. Adam Foreman at
Lafayette General Neuroscience Center of
Acadiana. His chief complaint was tremors, and he
told Dr. Foreman that his mother had tremors similar to his.
He explained that his left hand and his head shake, some days
worse than others. Sometimes he had difficulty brushing his
teeth. He also complained about losing his balance due to
numbness in his right leg. Dr. Foreman's impressions were
essential tremor, cervical dystonia, and right lower
extremity lumbar radiculopathy. He prescribed Primidone 50,
was considering Botox, and recommended an EMG. On a
subsequent undated visit,  the claimant reported falling
as frequently as once per day. Dr. Foreman increased his
Primidone dosage and prescribed Neurontin for his lumbar
claimant returned to Dr. Williams on July 15, 2014,
reporting that his leg was giving out and he was falling. He
moved about the office with a normal gait, he had pain with
palpation at the lower lumbar region, and testing showed
numbness at the L4-5 region.
August 27, 2014, the claimant had an EMG/nerve conduction
study with Dr. David L. Weir of the Lafayette General
Neuroscience Center of Acadiana. He told Dr. Weir that he
injured his back in the military in 1990 and that his low
back pain had worsened over the previous four years, with the
pain radiating into his right leg and right groin and down to
the right foot on the lateral portion of the leg. He reported
that, following decompression surgery at ¶ 3-L5, he
continued to have low back pain radiating to the right groin
and into his right lateral leg into the foot along with
decreased sensation in the entire right leg. He also told Dr.
Weir that his leg occasionally gave way. Upon examination,
the claimant had a positive extended leg raise test on the
right leg, there was decreased sensation to pinprick in the
entire right leg, there was a slight decrease in strength of
dorsiflexion and plantar flexion of the right foot, and he
had an action tremor of his hand. The study showed chronic
right L4-S1 radiculopathy that, according to Dr. Weir, might
have resulted from longstanding nerve root compression prior
September 2, 2014, the claimant again saw Dr.
Williams. His symptoms were unchanged but he was
observed moving around the office with guarded changes of
position. Dr. Williams recommended continued conservative
activities, and he prescribed Neurontin.
September 3, 2014, the claimant was evaluated by Dr. Sandra
B. Durdin, a clinical psychologist. He explained to her that
he injured his back during basic training in the military
when he fell out of a tower, and the resulting pain
progressively worsened over the years. He received
psychiatric treatment in 2000 due to marital issues and
issues with his weight. He had gastric bypass surgery in 2004
and kept the weight off thereafter. He reportedly drank
heavily for two years but now only drinks socially. He had
inpatient treatment for alcohol abuse and depression. Dr.
Durdin observed that his gait and posture were normal. She
stated that his focus was on his physical condition and the
things that he can no longer do rather than on his mental
status. She diagnosed persistent depressive disorder,
dysthymia, mild to moderate; alcohol use disorder, allegedly
controlled; and partner relational problems, reportedly
resolved. His mental status examination was normal. Dr.
Durdin opined that Mr. Hicks is able to understand and carry
out simple instructions as well as familiar detailed
instructions, that he can sustain attention and concentration
for two hour blocks of time, that he can get along with
others, that he can sustain over a forty-hour work week from
a mental perspective with adequate symptom control; and that
he can withstand low to medium demand tasks although his pain
could be a factor in tolerating high demand tasks. In Dr.
Durdin's opinion, Mr. Hicks's adaptive functioning
was not impaired by mental issues. She did not opine on his
physical impairments but recommended that his physical
capacity for work should be determined.
claimant saw Dr. White again on September 16, 2014 in follow
up for multiple problems including depression, alcoholism,
chronic pain syndrome, lumbar neuropathy, and pernicious
anemia. Having been told that his neuropathy was
permanent, Mr. Hicks was more depressed and drinking more.
Dr. White prescribed Cymbalta and Primidone and advised Mr.
Hicks to avoid excessive bending, lifting, and stooping.
October 21, 2014, Dr. White prescribed a cane for Mr. Hicks,
noting that he had been diagnosed with polyneuropathy and
that his mobility was impaired.On that same date, Dr.
White signed a “Medical Examiner's Certificate of
Mobility Impairment” required by the Office of Motor
Vehicles for a mobility-impaired license plate or
claimant followed up with Dr. White on November 5,
2014 regarding multiple conditions. Due to
recurrent falls, he was using the prescribed cane for
mobility. The dosage of Vitamin D3 was increased, and the
claimant was to follow up with his neurologist and
March 5, 2015, Mr. Hicks again saw Dr. White. His problems
were listed as depression, essential/familial tremor, weight
loss, Vitamin D deficiency, hypotestosteronemia, history of
bariatric surgery, history of low back surgery, and
Eustachian tube dysfunction. He was prescribed
Oxycodone-Acetaminophen in a lower dose, Testosterone
Cypionate, and folic acid. His AndroGel prescription was
discontinued because he had stopped taking it due to the
cost, and his Vitamin B-12 injections were discontinued due
to completion of therapy.
claimant returned to Dr. White on April 2,
2015. His chief complaints were weight loss,
history of gastric bypass surgery, cough, and depression. He
complained of being tearful, having low energy, trouble
concentrating, and trouble sleeping. He was diagnosed with
acute bronchitis and prescribed Mirtazapine for depression in
place of Cymbalta.
5, 2015,  Mr. Hicks again saw Dr. White. He
reported that he was drinking less beer, his energy level had
improved, and his appetite had improved. A moderate head
tremor was noted.
5, 2015, the claimant saw neurologist Dr. Rebecca
Whiddon upon referral from Dr. Foreman for
evaluation of dystonia (a movement disorder characterized by
involuntary muscle contractions). She did not mention the
claimant using a cane. She noted that the claimant's
mother has multiple sclerosis and his grandfather had
Parkinson's disease. Mr. Hicks complained of blurred
vision, back pain, muscle cramps, muscle weakness, tingling,
numbness, tremors, frequent falls, difficulty walking,
depression, and anxiety. His tandem gait was normal. Dr.
Whiddon observed mild tremulousness of the head, mild
postural tremulousness, and kinetic tremor in his left hand.
He had no rigidity. His handwriting was not micrographic or
tremulous. His right arm swing was absent while walking. He
stood with his right shoulder higher than his left shoulder
and his right foot turned out. Dr. Whiddon found that the
claimant's history and examination were consistent with
segmental dystonia involving the neck and upper extremities
asymmetrically. She ordered trials of Levodopa and
Clonazepam. She was not convinced that Mr. Hicks had
Parkinson's disease. She doubted that the vision problem
was related and referred the claimant to an ophthalmologist.
She also ordered laboratory testing.
claimant returned to Dr. White on July 2, 2015. His problem
list was limited to hypomagnesemia, tremor, and dystonia, and
Dr. White prescribed a magnesium supplement.
claimant followed up with Dr. Whiddon on August 17,
2015. He reported that neither Levodopa nor
Clonazepam had helped his symptoms. He also reported that his
brother had begun developing similar symptoms. She prescribed
Trihexyphenidyl HCL, an antispasmodic medication, and ordered
a diagnostic test called a DaTscan. The claimant was to stop
taking Clonazepam and try tapering off Primidone.
August 24, 2015, Dr. Williams filled out a “Physical
Residual Functional Capacity
Questionnaire.” In his opinion, the claimant was
permanently disabled and unable to return to work. He opined
that the claimant had an unsteady gait and permanent
neurological deficits. He estimated that the claimant could
not walk without either rest or severe pain, could sit or
stand for only five minutes without having to change
position, could sit and stand/walk for less than thirty
minutes in an eight-hour work day, would need to take
unscheduled breaks while at work, and would need to elevate
his legs during the work day. Dr. Williams noted that the
claimant must use a cane and should lift less than five
pounds. He opined that the claimant could occasionally look
down, turn his head to left or right, look up or hold his
head in a static position. He opined that the claimant could
never stoop, crouch/squat, or climb ladders, could rarely
twist with assistance, and could never climb stairs with
assistance. Dr. Williams opined that, because of his unsteady
gait, the claimant would have significant limitations with
reaching, handling, or fingering and should not engage in
work requiring those activities.
August 3, 2016, the claimant was examined by Dr. Charles E.
Kaufman, a neurologist, for an independent medical
evaluation. The claimant told Dr. Kaufman that the
surgery did not cure his back pain and that his right leg
pain worsened after surgery. He had also developed numbness
and tingling in the leg. His knee would give way causing him
to fall, and he used a cane. He stated that he had a mild
tremor for most of his life that had worsened over the
preceding two years. He did not have the DaTscan ordered by
Dr. Whiddon because he could not afford it. His maternal
grandfather had Parkinson's disease, and his mother has
followed by his primary care physician regarding his
bariatric surgery. He reported degenerative joint disease in
his knees and problems with his right hip that required
surgery. He reported that his brother had begun having
tremors. He reported only occasionally drinking beer. Dr.
Kaufman's examination detected mild bradykinesia or
slowness of movement typically associated with
Parkinson's disease. He detected greater muscle tone in
the left arm than in the right arm. He observed a definite
head tremor and a postural tremor of his arms, left arm
greater than right, which affected Mr. Hicks's
penmanship. The claimant's gait was “clearly
antalgic, ” and he used a cane. Dr. Kaufman concluded
that there was evidence of a neurological disorder that might
be Parkinson's disease or a Parkinson's plus
syndrome. It was his further opinion that there was not much
that the claimant was able to do from a physical standpoint,
leaving him totally disabled. He found that the claimant has
a chronic progressive degenerative neurologic disorder.
February 18, 2016, the claimant testified at a hearing
regarding his symptoms, impairments, and medical treatment.
He explained that he did not return to work following lumbar
surgery in January 2014. Most days, he watched television.
Sometimes he drove to the post office but, because he has
problems with his right leg giving out, he does not like to
drive very far. He has horses and dogs but is no longer able
to take care of them. He reads the news on the internet and
shops on craigslist. Occasionally, he and his wife host
family functions and they go out to dinner “every now
and then.” He remained under the care of Dr. White, Dr.
Williams, and a neurologist. Mr. Hicks explained that his
back hurts all the time, causing him to constantly change
positions. He said that he spends about four to five hours
per day laying down. Because he cannot bend over, he has a
device to help pull up his socks and uses a long shoe horn to
put on his shoes. Sometimes his wife has to tie his shoes for
him. He stated that the pain radiates down his right leg, and
he also experiences numbness in his leg. He said that walking
intensifies the pain in his back, hip, and down his leg. He
uses a cane when walking to keep as much pressure as possible
off his right leg and stated that he cannot walk long enough
to grocery shop. He stated that he has fallen numerous times
because his leg gave out. For that reason, he sits down while
taking a shower. He uses a heating pad and takes medication
for the pain. He has to elevate his leg at night when he
sleeps. Although he testified that he is on pain management,
there were no treatment notes in the record from a pain
management specialist. He also stated that his pain
medication makes him sleepy.
Hicks also explained that he has head and hand tremors. His
wife has to load his toothbrush for him, and he sometimes has
trouble holding a cup. He cooks only to quickly microwave
something. He does not do laundry, clean house, or do yard
work. Instead, his sister-in-law comes twice a week to help
out in the house and he has others assist with his horses. He
can no longer ride or care for his horses.
no longer fish. He estimated that he can sit or stand for
only about five to ten minutes before having to change
positions or stretch out. He estimated that he could only
walk for about thirty to forty yards. He stated that he no
longer abuses alcohol, drinking only one or two beers once or
twice a week.
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, 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 experience.
Entitlement to Benefits
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. 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.” 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 ...