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Hicks v. Berryhill

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

November 1, 2018


          JAMES 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 reversed and remanded for further administrative action.

         Administrative Proceedings

         The 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[1] due to a back injury, depression, and anxiety.[2] His application was denied.[3] He then requested a hearing, which was held on February 18, 2016 before Administrative Law Judge Thomas J. Henderson.[4] 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.[5] The claimant asked the Appeals Council to review the decision, but no basis for review was found.[6] 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 Commissioner's decision.

         Summary of Pertinent Facts

         The claimant was born on January 5, 1969.[7] 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.[8] 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.[9] He alleged that he has been disabled since January 2014 due to a back injury, depression, and anxiety.[10]

         On January 17, 2012, [11] 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 depression.

         On February 10, 2012, Mr. Hicks visited Dr. David Clause at Opelousas Orthopaedic Clinic, [12] 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.

         Mr. Hicks followed up with Dr. White on March 1, 2012.[13] 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.

         The claimant again saw Dr. White on March 23, 2012[14] to get the results of a lumbar spine CT scan, which showed[15] 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.

         On April 12, 2012, Mr. Hicks consulted Dr. George Raymond Williams, an orthopaedic surgeon.[16] 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.

         On June 15, 2012, the claimant followed up with Dr. White, [17] 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.

         When the claimant returned to Dr. Williams on July 24, 2012, [18] 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.[19]

         When Mr. Hicks saw Dr. Williams again on September 11, 2012, [20] 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, 2012.[21]

         On October 16, 2012, [22] 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 next day.[23]

         The claimant saw Dr. Williams again on November 6, 2012.[24] His condition was unchanged. He was taking Lortab, Percocet, Norco, Alprazolam, Mobic, and Pristiq. The plan was to repeat LESIs as needed.

         The claimant returned to Dr. White on February 4, 2013, [25] 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.[26]

         Mr. Hicks saw Dr. Williams again on February 7, 2013.[27] 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.[28]

         The claimant's next appointment with Dr. White was on March 26, 2013.[29]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.[30]

         The claimant saw Dr. White again on April 12, 2013[31] to get lab test results. Hypotestosteronemia (low testosterone) was added to his problem list, and he was prescribed AndroGel.

         On May 21, 2013, the claimant returned to Dr. Williams.[32] 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.

         On July 18, 2013, the claimant saw Dr. Williams, again complaining of back and right leg pain.[33] 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.

         An MRI of the claimant's lumbar spine was obtained on July 23, 2013.[34] 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 canal.

         The claimant saw Dr. White again on July 30, 2013, [35] 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.

         The claimant followed up with Dr. Williams on August 20, 2013, [36] and Dr. Williams recommended an L3-L5 posterior lumbar decompression and fusion. Mr. Hicks indicated, however, that he would like to postpone the procedure.

         The claimant returned to Dr. Williams on December 10, 2013.[37] 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.

         The claimant had a preoperative evaluation with Dr. Williams on January 2, 2014.[38] 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.

         The claimant also saw Dr. White that same day.[39] Dr. White found him to be at low risk for intra-operative complications and okayed him for the lumbar surgery.

         On 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, 2014.[40]

         On January 27, 2014, [41] 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.

         The claimant followed up with Dr. Williams on February 20, 2014.[42] 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.

         Mr. Hicks saw Dr. Williams again on March 20, 2014.[43] 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.

         The claimant saw Dr. White on April 15, 2014.[44] 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.

         The claimant returned to Dr. Williams on April 24, 2014.[45] 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.

         The claimant saw Dr. White on June 2, 2014.[46] 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 B-12.

         The claimant saw Dr. Williams again on June 5, 2014.[47] 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.

         An MRI of the claimant's lumbar spine, obtained on June 12, 2014, [48] 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 thecal sac.

         On June 19, 2014, Mr. Hicks returned to Dr. Williams, [49] 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 evaluation.

         An MRI of the cervical spine obtained on June 24, 2014[50] 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.[51]

         On June 30, 2014, the claimant saw a neurologist, Dr. Adam Foreman at Lafayette General Neuroscience Center of Acadiana.[52] 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, [53] the claimant reported falling as frequently as once per day. Dr. Foreman increased his Primidone dosage and prescribed Neurontin for his lumbar radiculopathy.

         The claimant returned to Dr. Williams on July 15, 2014, [54] 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.

         On August 27, 2014, the claimant had an EMG/nerve conduction study with Dr. David L. Weir of the Lafayette General Neuroscience Center of Acadiana.[55] 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 to surgery.

         On September 2, 2014, the claimant again saw Dr. Williams.[56] 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.

         On September 3, 2014, the claimant was evaluated by Dr. Sandra B. Durdin, a clinical psychologist.[57] 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.

         The 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.[58] 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.

         On 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.[59]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 hang-tag.[60]

         The claimant followed up with Dr. White on November 5, 2014[61] 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 orthopedist.

         On March 5, 2015, Mr. Hicks again saw Dr. White.[62] 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.

         The claimant returned to Dr. White on April 2, 2015.[63] 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.

         On May 5, 2015, [64] 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.

         On June 5, 2015, the claimant saw neurologist Dr. Rebecca Whiddon[65] 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.

         The claimant returned to Dr. White on July 2, 2015.[66] His problem list was limited to hypomagnesemia, tremor, and dystonia, and Dr. White prescribed a magnesium supplement.

         The claimant followed up with Dr. Whiddon on August 17, 2015.[67] 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.

         On August 24, 2015, Dr. Williams filled out a “Physical Residual Functional Capacity Questionnaire.”[68] 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.

         On August 3, 2016, the claimant was examined by Dr. Charles E. Kaufman, a neurologist, for an independent medical evaluation.[69] 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 MS.

         He is 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.

         On 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.

         Mr. 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.

         He can 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.


         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.[70] “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.”[71] 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.'”[72]

         If the Commissioner's findings are supported by substantial evidence, they are conclusive and must be affirmed.[73] 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.[74] Conflicts in the evidence[75] and credibility assessments[76] 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.[77]

         B. Entitlement to Benefits

         The 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.[78] 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.”[79] 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 ...

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