United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE
accordance with the provisions of 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73, the parties consented to have this matter
resolved by the undersigned Magistrate Judge, and it was
referred to the undersigned Magistrate Judge for all
proceedings, including entry of judgment. (Rec. Docs. 12).
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,
the Commissioner's decision is affirmed.
claimant, Diana Ophelia Hussey,  fully exhausted her
administrative remedies before filing this action in federal
court. She filed applications for disability insurance
benefits (“DIB”), supplemental security income
benefits (“SSI”), and disabled widow's
benefits (“DWB”), alleging that she became
disabled on September 10, 2010. Her applications were
denied. She requested a hearing, which was held on
July 7, 2016 before Administrative Law Judge Tamia N.
Gordon.The ALJ decided that the claimant was not
disabled within the meaning of the Social Security Act from
September 10, 2010 (the alleged disability onset date)
through August 30, 2016 (the date of the decision). Ms.
Hussey requested review of the decision, but the Appeals
Council found no basis for review. 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). Ms. Hussey then filed this action seeking
review of the Commissioner's decision.
of Pertinent Facts
claimant was born on July 23, 1964. At the time of the ALJ's
decision, she was 52 years old. She graduated from high
school,  and has relevant work experience as a
patient care attendant. She alleged that she has been disabled
since September 10, 2010 due to vascular headaches, seizures, a
low back injury, left temporal dysfunction, and an
September 29, 2010,  Ms. Hussey saw Dr. David S. Muldowny, an
orthopaedic surgeon with Lafayette Bone and Joint Clinic in
Lafayette, Louisiana, for the first time. She reported that
she injured her low back while working on September 10, 2010
when the person she was caring for fell forward and Ms.
Hussey grabbed the patient around the waist and lifted her
upward. Ms. Hussey claimed to have immediately felt back pain
that, within a few hours, radiated into her legs. She sought
treatment in the emergency room of Our Lady of Lourdes
Hospital and was diagnosed with pulled muscles. She was given
Lortab, Naproxen, and Flexeril, and released. She then saw
Dr. Paul Fenn, the physician assigned by her employer's
workers' compensation carrier. She reported to Dr.
Muldowny that she had never had a previous back problem and
had not previously seen a doctor for low back issues. She
reported low back pain that she rated at four on a ten point
scale and described the pain as aching, burning, and
tingling. She stated that it worsened with walking, sleeping,
bending, stooping, sitting, and driving. Laying down helped
the pain. She had not worked since the injury.
examination, Dr. Muldowny found that the claimant had a
normal gait and a level pelvis. Straight leg raise tests were
negative. Her leg reflexes were normal and sensation in her
legs was intact. Dr. Muldowny obtained x-rays that showed
substantial degenerative changes at L3-4 with disc space
narrowing, anterior osteophytes, and some irregularity of the
endplate. He diagnosed degenerative disc disease of the
lumbar spine and lumbar strain. He planned to obtain an MRI
of her lumbar spine.
examination of the claimant's lumbar spine was performed
on October 13, 2010. Ms. Hussey returned to Dr. Muldowny on
October 27, 2010, and Dr. Muldowny noted that the MRI
showed disc desiccation at multiple levels, with desiccation
and narrowing at L1-2 and L3-4; mild desiccation at L 3-4,
L4-5, and L5-S1; and a small bulge at L4-5 in the left
paracentral area with a very small high intensity zone in the
posterior annulus. He prescribed physical therapy.
claimant saw Dr. Muldowny again on December 1,
2010. She reported good improvement in pain
with physical therapy. When she returned on January 5, 2011,
she reported a pinching pain in the upper part of her back,
but she was continuing with physical therapy.
February 2, 2011, the claimant again saw Dr.
Muldowny. She was doing about the same but had
stopped taking Lortab and Naprosyn due to side effects. She
was in physical therapy and not working. Straight leg raise
tests were negative.
Hussey returned to Dr. Muldowny on April 19, 2011,
after having a functional capacity evaluation that indicated
she could do light work. Dr. Muldowny opined that the
evaluation was reasonable and precluded her from returning to
her previous work, which required medium level work. Upon
examination, there was no tenderness to palpation of her
lumbar spine, the muscle strength in her legs was not
impaired, and straight leg raise tests were negative. Dr.
Muldowny released the claimant to work light duty work, four
hours per day.
claimant saw Dr. Muldowny again on May 17,
2011. She still complained of back pain but
she was no worse. There was no tenderness to palpation, no
impairment in leg muscle strength, and straight leg raise
tests were negative. Dr. Muldowny explained that he was not
recommending surgical intervention. He advised the claimant
to be as active as possible. She was planning to see an
the claimant saw Dr. Muldowny again on June 28, 2011,
she complained of low back pain with pain radiating into her
feet as well as numbness in her feet. She reported that the
pain was constant and woke her up. She was planning to return
to work. There was no tenderness to palpation, no impairment
in leg muscle strength, and straight leg raise tests were
September 27, 2011, Ms. Hussey told Dr. Muldowny that she was
doing worse. She had stopped taking anti-inflammatory
medication due to perceived side effects, and her back pain
had increased to nine out of ten. She was also having leg
pain primarily in the left leg, although her pain had
previously been primarily in the right leg. In addition to
low back pain, she was having central and bilateral sided
back pain. Dr. Muldowny ordered an updated MRI exam. She had
no tenderness to palpation, no impairment in leg muscle
strength, and negative straight leg raise tests.
of the lumbar spine obtained on October 6, 2011 showed mild
degenerative disc disease including an L4-5 left foraminal
zone annular disc fissure and mild bilateral foraminal
narrowing at L4-5 and L5-S1.
the claimant saw Dr. Muldowny on October 18, 2011,
he shared the results of the MRI with her and noted that she
was working light duty. His examination yielded the same
results as previously, and he recommended continuing the same
Hussey followed up with Dr. Muldowny on December 20,
2011.According to Dr. Muldowny, she was
slightly worse. She was continuing to have low back pain
radiating into her legs with bilateral foot numbness. She
reported that the numbness affected her ability to feel the
pedals while driving. She requested a different pain
medication so that she could reserve narcotics for night
time. Tramadol was added for day time pain. She was to
continue on light duty status.
February 1, 2012, Ms. Hussey told Dr. Muldowny that she was
doing worse. The pain was moving from her low back into her
right buttock and down her leg. She reported that working
made the pain worse, and she had taken some time off. Dr.
Muldowny recommended an EMG/nerve conduction study of her
right leg. Again, however, there was no tenderness to
palpation, no impairment in leg muscle strength, and negative
straight leg raise tests.
claimant saw Dr. Daniel L. Hodges on February 28, 2012 for
the nerve conduction study, which showed low grade L5
Ms. Hussey returned to Dr. Muldowny on March 6, 2012,
she complained of back and bilateral leg pain, worse on the
right than the left. Dr. Muldowny recommended an epidural
steroid injection at L4-5.
Hussey returned to Dr. Muldowny on April 3,
2012. She had not had the epidural injection
because she is allergic to cortisone. She complained of back
pain and leg weakness. She told Dr. Muldowny that she could
not walk for very long. Upon examination, he detected mild to
moderate tenderness in the lumbrosacral area, centrally and
slightly off to the right, but no tenderness to palpation or
light percussion in the lumbar area in the mid-lumbar spine.
There was no pain on axial compression. The muscle strength
in her legs remained unimpaired, her sensation was intact,
and straight leg raise tests were negative. Dr. Muldowny
counseled against surgery, recommended a functional capacity
evaluation, and recommended a referral to Dr. Hodges for pain
functional capacity evaluation was conducted by physical
therapist Micah Harriss of Southern Spine Institute on April
16, 2012. Mr. Harriss concluded that Ms. Hussey
was able to perform sedentary work, and he recommended a
short-term work conditioning program to improve her physical
Hussey returned to Dr. Muldowny on April 24,
2012. She complained of “quite
significant pain” and reported that her legs sometimes
give out, causing her to fall. But she could not identify
which leg gave out. Her straight leg raise tests were again
negative. Dr. Muldowny recommended that she proceed with a
work conditioning program and that she be referred to pain
claimant saw Dr. Daniel L. Hodges for pain management on May
17, 2012. She complained of back pain, bilateral
leg pain and stiffness, and bilateral foot numbness. She
rated her pain at seven out of ten. She reported that the
pain was aggravated by walking, bending, sitting for long
periods, and standing for long periods. She also complained
of numbness and weakness in her legs and feet, vascular
headaches, and difficulty sleeping. Upon examination, Ms.
Hussey exhibited pain on extension but she could flex
forward, touching her toes. She had difficulty squatting. She
appeared to be intact neurologically and she had no obvious
motor or sensory deficits in her upper or lower extremities.
Dr. Hodges's impression was multilevel degenerative disc
disease with acute and chronic low back and leg pain with
intermittent radiculitis. He prescribed Hydrocodone and
claimant returned to Dr. Hodges on June 14,
2012 with the same symptoms. She had
difficulty with heel and toe maneuvers and was unable to
squat. She also had decreased pinprick sensation over the L5
distribution bilaterally. Medication therapy was continued.
Hussey returned to Dr. Muldowny on July 18,
2012. She complained of lumbrosacral pain. She
also complained that her leg gives out for no apparent
reason, causing her to fall. Dr. Muldowny noted that the work
conditioning program had not yet been approved. There was
mild tenderness to palpation but normal strength and
sensation. Dr. Muldowny noted that he had no explanation for
her leg giving out, as nothing was shown on the MRI that
might cause that to happen.
the claimant returned to Dr. Muldowny on August 22, 2012,
the work conditioning program had still not been approved.
Muscle strength and sensation were intact. Straight leg raise
tests were negative. She was interested in pursuing surgery
but Dr. Muldowny suggested a psychologic evaluation to see if
she was a suitable candidate for surgery.
claimant saw Dr. Hodges again on September 13,
2012. Examination showed that her lumbar range
of motion was diminished. She had pain on attempts at
extension and flexion as well as during concurrent lateral
bending and rotation. She had difficulty with heel and toe
maneuvers. Her medications were adjusted.
claimant's headache complaints were evaluated at
University Medical Center (“UMC”) in Lafayette,
Louisiana, on November 26, 2012. A CT scan of her brain
obtained that day was normal. An EEG was mildly abnormal,
suggesting the possibility of a left temporal dysfunction and
raising the possibility of an underlying structural brain
claimant returned to Dr. Hodges on December 13,
2012. Her chief complaint was back and leg
pain. She indicated that her pain was constant and worsened
by normal daily activities. She stated that she had been
having headaches and had been diagnosed with vascular
dysfunction. Her medications were adjusted.
December 19, 2012,  Ms. Hussey was seen by Dr. Muldowny, who
was awaiting the results of a psychological evaluation from
the week before. Muscle strength in her legs was normal,
sensation was intact, and straight leg raise tests were
claimant saw Dr. Hodges again on March 21,
2013. She reported that weather changes and
increased daily activities increase her pain while rest,
heat, and cold compresses alleviated her pain. She was given
information on an anti-inflammatory diet, sleep and
relaxation techniques, and the importance of a good mattress
and pillow. Her cervical spine range of motion was normal,
and she had good strength in her upper extremities. She had
pain on extension and flexion of the lumbar spine and on
lateral bending and rotation. She could heel and toe walk,
but had difficulty squatting. Her medication was adjusted.
Hussey returned to Dr. Muldowny on March 26,
2013 after completing psychological testing.
She complained of back pain and right leg pain. Straight leg
raising produced some leg pain on the right. The psychosocial
evaluation suggested significant somatoform behavior. This
occurs when a patient experiences physical symptoms that are
inconsistent with or cannot be fully explained by any
underlying medical condition. She was at high risk for a
poor response to surgery, and additional psychotherapy was
recommended. Dr. Muldowny recommended postponing surgery
until after the claimant addressed psychosocial issues.
claimant saw a neurologist at UMC on April 19,
2013. The treatment notes are largely
illegible but left temporal dysfunction is mentioned. An EEG
on May 1, 2013 was normal.
claimant was seen in the emergency department at UMC on May
22, 2013 with headache complaints. She gave a history of
chronic back pain.
claimant returned to Dr. Muldowny on May 28, 2013,
still having back and leg pain. She had begun psychotherapy.
Her current treatment was continued.
Hussey followed up at the neurology clinic at UMC on June 7,
2013.She reported that her headaches were
better since a recent medication adjustment.
Hussey saw Dr. Hodges on June 19, 2013. He noted that
she was being treated by a neurologist for seizures and
seeing a psychologist at the direction of her workers'
compensation insurance carrier. She complained of back pain
radiating into both legs and feet, aggravated by movement.
She stated, however, that she does get relief with mediation.
Examination of her back showed a slightly forward flexed
posture, a restricted range of motion on extension and
flexion with complaints of pain, and moderate dysrhythmia.
Motor function was intact in both legs. Toe and heel walking
was impaired. She had positive straight leg raise tests on
both legs. Dr. Hodges adjusted her medications.
claimant returned to Dr. Muldowny on September 3,
2013. She had normal muscle strength in both
legs, no impairment in tandem walking, walking on toes, or
walking on heels. Her gait was normal, and straight leg raise
tests were negative. Dr. Muldowny was awaiting a report from
the psychologist clearing her for surgery.
claimant was seen at UMC on November 16, 2013. The
handwritten treatment note is very difficult to read, but it
seems that the claimant was doing well, had no current
complaints, and was following up with regard to treatment for
a seizure disorder, temporal dysfunction, vascular headaches,
and other issues.
claimant saw Dr. Muldowny on November 19, 2013. He noted that
she had not yet been approved for surgery by her workers'
compensation insurance carrier even though the psychologist
had opined that she was no longer at risk for a poor result
from a psychosocial standpoint. Her legs were normal
neurologically. Her gait and station were normal. The muscle
strength and tone in her legs was normal. Straight leg raise
tests were negative. In Dr. Muldowny's opinion, the MRI
showed an annular tear at L4-5 that was causing her pain.
Hussey was seen in the emergency department of American
Legion Hospital in Crowley, Louisiana on April 2, 2014,
complaining of nausea and vomiting. She was given medications
health summary from UMC dated September 19, 2014 indicated
that the claimant was being treated by Dr. Fabian Lugo, a
neurologist, for epilepsy. On that same date, the
claimant was seen in UMC's internal medicine
clinic. The claimant complained that her
seizures were getting worse. The treatment note indicated
that she was first diagnosed with seizures in November 2012
and that her last seizure was three months previously. She
was taking Lamictal. Her dosage of that medication was
adjusted, and Hydroxyzine Pamoate was prescribed.
March 28, 2015, the claimant was examined by Dr. Jean-Victor
Bonnaig for Disability Determination Services. The claimant
drove herself to the appointment. Dr. Bonnaig noted that she
was a poor historian. She gave a history of seizures,
vascular headaches, and an electrolyte imbalance. She stated
that her seizures cause her to “stay confused, ”
cause short term memory loss, and make her unable to find
things. She reported low back problems since lifting a heavy
patient in 2010. She reported a history of anxiety. She
reported a history of throbbing headaches in the temporal
area associated with vision changes and seizures that were
relieved by taking prescription medication. She reported a
history of petit mal seizures eight times per month over the
previous two years that left her sleepy. She claimed to have
had an unwitnessed seizure three days earlier. The claimant
reported that she can walk only very short distances on level
ground, has difficulty standing for more than five minutes,
can lift ten to twenty-five pounds without difficulty with
either arm, can sweep, mop, vacuum, or do dishes for up to
fifteen minutes at a time, can cook for up to thirty minutes
at a time, can climb no more than two or three steps, cannot
care for a yard or mow grass, and cannot balance a checkbook.
Dr. Bonnaig observed the claimant get up and out of a chair
and on and off the examination table without difficulty. He
noted that she walked without difficulty, without an
assistive device, and with a normal gait. He found no
evidence of scoliosis, no spasm of the paraspinous muscles,
and no evidence of kyphosis. Sitting and supine straight leg
raise tests were positive in both legs although the test
caused shooting pain on the right side only. The claimant was
not able to walk on her toes or heels, she had difficulty
squatting, bending, and tandem heel walking. The range of
motion in her cervical spine was normal but it was limited in
the lumbar spine. Dr. Bonnaig opined that the claimant was
limited to standing and walking only occasionally in an
eight-hour work day and has a limited ability to bend or
October 9, 2015, the claimant followed up at UMC's
neurology clinic. Her chief complaints were seeing flashes of
light and having blurry vision, headache episodes, feeling
tired and lethargic, tremors, and anxiety. Her seizures were
under control since increasing her medication. She had a
normal range of motion, normal strength, and a normal gait.
She was taking Vistaril, Lamictal, and Ibuprofen.
Hussey was seen at UMC on November 13, 2015 for shortness of
breath and heart fluttering. She was noted to be a poor
historian. She was unable to state how often she gets
palpitations, but she stated that the last episode was a week
earlier. She was given a prescription for her cough, she was
advised to use over the counter medications for
gastro-esophageal reflux, and an EKG was ordered.
echocardiogram obtained on November 19, 2015 at UMC showed
normal left ventricular function but diastolic
claimant returned to UMC on December 3, 2015 with regard to
hearing loss on the left. The doctor opined that her
asymmetric sensorineural hearing loss was likely related to
her seizure disorder. An MRI was ordered. The doctor also
diagnosed eustachian tube dysfunction, for which she
recommended Flonase and autoinsufflation (or gently blowing
against pinched nostrils to pop the ears).
December 28, 2015,  Ms. Hussey underwent an MRI examination
of the brain in connection with her complaints of left-sided
hearing loss, headaches, and blurry vision. The MRI showed
mastoid inflammatory disease on the left, soft tissue
thickening and enhancement in the external canal on the left
with otitis externa not excluded, and small foci of signal
abnormality in the external capsule bilaterally, suggesting
prior lacunar infarcts.
Hussey was seen in the urology clinic at UMC on March 14,
2016. She gave a history of recurrent
microscopic hematuria after being exposed to something in
drinking water five years previously. The impression was a
borderline abnormal enlargement of the liver but no
abnormalities in the kidneys, ureters, or bladder. The
physician noted that he had no comment regarding the
possibility that her condition resulted from her drinking
Hussey followed up at UMC with regard to her hearing loss on
April 28, 2016. She complained of muffled hearing but
stated that her seizures were better controlled. Testing
showed significant improvement in her hearing, with her
sensorineural hearing resolved but a slight conductive
hearing loss remaining, likely due to better control of
seizures. She was to restart Flonase and use
20, 2016, the claimant was seen at UMC's neurology
clinic. She could not state when her last
seizure occurred. She was to continue taking Lamictal.
7, 2016, the claimant testified at a hearing regarding her
symptoms and her medical treatment. She explained that she
injured her lumbar spine in 2010 while helping a patient who
had fallen. Her treating physician, Dr. Muldowny, referred
her to physical therapy and to pain management, and he also
recommended lumbar surgery. She stated that she was unable to
undergo the recommended surgical procedure due to a platelet
disorder that she contended was the result of exposure to
chemicals in her neighborhood. She explained that she
attempted to work as a part-time, light-duty personal care
attendant after her back was injured, but found that the
injury precluded her from performing even the limited duties
required in that position. Therefore, she stopped working in
2012. She testified that her back injury limited her to
sitting for approximately forty-five minutes at a time before
her feet go numb and her back and leg pain worsen. She
testified that she experienced shooting pains in her legs and
feet when walking or standing and stated that she could walk
for only about fifteen to twenty minutes at a time. Ms.
Hussey explained that she limited her daily activities to
accommodate her pain level. For example, she does minimal
house work over a period of time, she shops at convenience
stores rather than at Walmart to reduce the amount of
walking, she does not walk across large parking lots, and she
does not walk to her mailbox every day. Nevertheless, Ms.
Hussey lives alone, tends to her personal grooming needs,
prepares simple meals, can drive short distances although she
prefers not to, and can shop for herself.
addition to her back problem, Ms. Hussey reported severe
headaches that last for approximately six to twelve hours at
a time and occur two to three times per month, a history of
epileptic seizures, and hearing loss. At the time of the
hearing, she had recently been diagnosed with congestive
Hussey now seeks to have the Commissioner's adverse
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. If unmarried
and between fifty and sixty years old, the widow of a fully
insured individual is entitled to widow's insurance
benefits if she is disabled and her disability began no more
than seven years after the wage earner's death or seven
years after she was last entitled to survivor's
benefits. Every individual who meets certain
income and resource ...