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Trahan v. U.S. Commissioner

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

March 28, 2019

LARRY J. TRAHAN
v.
U.S. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          MEMORANDUM RULING AND ORDER

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE 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, the Commissioner's decision is REVERSED AND REMANDED.

         Administrative Proceedings

         The claimant, Larry J. Trahan, fully exhausted his administrative remedies prior to filing this action in federal court. The claimant filed an application for disability insurance benefits (“DIB”), alleging an onset date of April 2, 2015.[1] His application was denied on June 12, 2015.[2] The claimant requested a hearing, which was held on July 28, 2016 before Administrative Law Judge Kim A. Fields.[3] The ALJ issued a decision on September 21, 2016, [4] concluding that the claimant has not been under a disability from April 2, 2015 through the date of the ALJ's decision.

         The claimant asked for review of the decision, and the Appeals Council denied this request on July 28, 2017.[5] Therefore, ALJ Fields's September 21, 2016 decision 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 in June 1967 and was 47 years old on his alleged onset date of April 2, 2015. He is considered a younger individual under the Act. The claimant is a high school graduate and attended one year of trade school during high school for auto mechanics, but did not complete the course work. He worked in the oilfield for thirteen years, but quit that job because he could no longer climb. The claimant then tried working in the apartment business for approximately one year, but the work was too hard on his feet. The claimant subsequently worked as a car salesman at a used car lot for eighteen years. He stopped working this job because he was having trouble with his legs and back.

         The claimant alleges that he has been disabled since April 2, 2015 due to his club feet with triple orthodesis fusion, arthritis in his back and hip, degenerative spinal problems, and spurs on discs in his back.[6]

         Analysis

         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.[7] “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.”[8] 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.'”[9]

         If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed.[10] 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.[11] Conflicts in the evidence and credibility assessments are for the Commissioner to resolve, not the courts.[12] 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.[13]

         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.[14] Every individual who meets certain income and resource requirements, has filed an application for benefits, and is determined to be disabled is eligible to receive Supplemental Security Income (“SSI”) benefits.[15]

         The term “disabled” or “disability” means the inability 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.”[16] A claimant shall be determined to be 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 numbers in the national economy, regardless of whether such work exists in the area in which the claimant lives, whether a specific job vacancy exists, or whether the claimant would be hired if he applied for work.[17]

         C. Evaluation Process and Burden of Proof

         The Commissioner uses a sequential five-step inquiry to determine whether a claimant is disabled. This process required the ALJ to determine whether the claimant (1) is currently working; (2) has a severe impairment; (3) has an impairment listed in or medically equivalent to those in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) is able to do the kind of work he did in the past; and (5) can perform any other work at step five.[18] If it is determined at any step of that process that a claimant is or is not disabled, the sequential process ends. “A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis.”[19]

         Before going from step three to step four, the Commissioner assesses the claimant's residual functional capacity[20] by determining the most the claimant can still do despite his physical and mental limitations based on all relevant evidence in the record.[21] The claimant's residual functional capacity is used at the fourth step to determine if he can still do his past relevant work and at the fifth step to determine whether he can adjust to any other type of work.[22]

         The claimant bears the burden of proof on the first four steps.[23] At the fifth step, however, the Commissioner bears the burden of showing that the claimant can perform other substantial work in the national economy.[24] This burden may be satisfied by reference to the Medical-Vocational Guidelines of the regulations, by expert vocational testimony, or by other similar evidence.[25] If the Commissioner makes the necessary showing at step five, the burden shifts back to the claimant to rebut this finding.[26] If the Commissioner determines that the claimant is disabled or not disabled at any step, the analysis ends.[27]

         D. The ALJ's Findings and Conclusions

         On appeal to this Court is ALJ Fields's September 21, 2016 decision that the claimant is not disabled because he has the functional capacity to perform sedentary work with certain modifications, including the jobs of telephone solicitor and check cashier.[28]

         E. The Allegations of Error

         Mr. Trahan challenges the ALJ's failure to properly apply controlling law in evaluating the medical opinions of Dr. Charles Olivier, the claimant's treating physician; failure to apply controlling law in evaluating the claimant's credibility; and failure to properly assess the claimant's residual functional capacity.

         Medical Background

         Dr. Olivier is the claimant's treating physician, having treated him from approximately April 15, 2015 to November 2016. Initially, the claimant was evaluated by Dr. Olivier for bilateral leg pain, low back pain, and hip pain. The claimant was born with a left club foot, for which he underwent surgery. The claimant stated he had difficulty walking in the mornings. Examination of the claimant's back showed loss of lumbar lordosis and midline tenderness. The claimant had left foot numbness of the third, fourth, and fifth toes. He limped when walking and his left foot examination showed stiffness, diminished sensation at the third, fourth, and fifth toes, and was rigid. X-rays of the lumbar spine showed moderate degenerative changes, especially at the L2-3 level, and spurs on the superior end plates of L4 and L5. Bilateral hip x-ray showed a normal left hip, but probable subluxation of the right hip. On April 15, 2015, Dr. Olivier diagnosed the claimant with low back pain, pain in hip, lumbar/lumbosacral disc degenerative disease, club foot, and dysplasia of the right hip, and the claimant was prescribed Mobic and a back brace. Dr. Olivier opined that the claimant should be limited to light duty work and should “check into disability.”[29]

         On June 15, 2015, Dr. Olivier reported that the claimant was doing a little better and was responding well to Mobic and the use of the back brace. However, the claimant's diagnosis did not change, and Dr. Olivier again opined that the claimant was restricted to “light duty.” At that time, Dr. Olivier prescribed a cane for walking.[30] On August 10, 2015, the claimant reported he was doing the same, yet on this date, Dr. Olivier opined that the claimant was restricted to “no duty.”[31]

         On October 9, 2015, Dr. Oliver completed a Medical Source Statement, in which he reported the following restrictions: inability to sit for 6 hours in an 8-hour workday due to back and hip pain; inability to stand/walk for 2 hours in an 8-hour workday due to pain; limited to standing/walking for 15 minutes at one time; the need to alternate positions between sitting and standing every 15 minutes to alleviate pain and numbness; the need to use a cane or assistance device when engaging in occasional standing/walking; limited range of motion of the cervical spine; difficulty maintaining neck flexion for longer than 30 minutes at one time; lifting of 10 pounds or less; the need to elevate legs two feet high multiple times per day (hourly) with prolonged sitting; and the need to take unscheduled breaks during the workdays due to his impairments. Dr. Olivier reported that the claimant would be expected to miss work or leave early due to his impairments multiple times per week. Dr. Oliver further opined the claimant likely be “off task” 25% or more of the workday due to his symptoms interfering with his attention and concentration.[32]

         In an updated Medical Source Statement completed by Dr. Olivier on July 20, 2016, Dr. Olivier reported that the claimant continued to have substantially similar functional limitations as stated in the October 2015 Statement, and continued to have these limitations through the date of completion of the form. On December 28, 2015, Dr. Olivier opined that the claimant, who was having the same pain, was “disabled.”[33]On April 29, 2016, Dr. Olivier reported that the claimant had the same impairments and pain.[34]

         Dr. Olivier's opinions are accompanied by the diagnostic testing the claimant underwent at his request. X-rays dated October 9, 2015 showed diffuse degenerative changes throughout the cervical spine, but worse at ¶ 3-4, C5-6 and C6-7.[35] Lumbar x-rays showed moderate degenerative changes, especially at ¶ 2-3, and spurs on superior end plates at ¶ 4 and L5.[36] The right hip x-ray revealed subluxation of the hip head, and that the right hip looked shorter.[37] Dr. Olivier's assessment was paresthesia of the skin, intervertebral lumbar disc degeneration, congenital deformities of the feet, and cervical spondylosis.[38]

         On November 4, 2015, EMG/NCV testing revealed severe bilateral carpal tunnel syndromes (“CTS”), severe bilateral cubital tunnel syndromes, and bilateral ulnar entrapment at the wrists, as well as possible left C8 and C5 radiculopathy.[39]On December 28, 2015, Dr. Olivier's examination revealed atrophy of the first web space of the left hand, positive Tinel's sign bilaterally, and decreased sensation to light touch in all fingers bilaterally.[40] Dr. Olivier's new diagnoses included spondylosis, cervical region; CTS; lesion of the ulnar nerve; and other lesions of the left upper limb median nerve.[41] X-rays of the left foot revealed calcification of the Achilles tendon and heel spur as well as multiple post-surgical changes. On February 29, 2016 and April 29, 2016, Dr. Olivier's clinical findings were consistent with prior examinations. Notably, the positive findings on the claimant's bilateral straight leg raise tests grew more severe (i.e., the degree at which pain was elicited decreased) over time. On December 18, 2015, it was 60 degrees bilaterally.[42]On February 29, 2016, it was 60 degrees on the right and 45 degrees on the left.[43] On April 4, 2016, it was 50 degrees on the right and 45 degrees on the left.[44]

         At the request of the ALJ, Dr. John Anigbogu, who specializes in pain management and rehabilitation, completed a Medical Interrogatory of Physical Impairments (Adults) on August 6, 2016. Notably, Dr. Anigbogu did not examine the claimant. Dr. Anigbogu assessed the claimant's residual functional capacity as follows: continuous lifting and/or carrying of up to 10 pounds; frequent lifting and/or carrying of up to 20 pounds; unlimited sitting at one time or total; standing for up to 3 hours at one time; walking for up to 3 hours at one time, standing a total of 3 hours in an 8-hour workday; walking for 3 hours in an 8 hour workday; continuous bilateral reaching (overhead and all other); frequent bilateral handling; occasional bilateral fingering and feeling; and frequent bilateral pushing and pulling. Dr. Anigbogu also opined that the claimant can frequently operate foot controls with both feet; can continuously climb stairs and ramps; occasionally climb ladders or scaffolds; and continuously balance, stoop, kneel, crouch, and crawl.[45]

         In his decision, the ALJ stated he gave “little weight” to Dr. Olivier's October 2015 Medical Source Statement, which imposed significant limitations such that the claimant would not be capable of performing even sedentary work, on grounds the Statement was not supported by the medical evidence in the record. Rather, the ALJ gave “great weight” to the April 2016 opinion of Dr. Anigbogu, finding Dr. Anigbogu was an impartial medical expert who reported that the claimant suffered from bilateral carpal tunnel and cubital tunnel syndrome, chronic low back pain, and hip pain and obesity, but nevertheless was able to perform light work with difficulties in repetitive function.

         Failure to properly evaluate Dr. Olivier's opinions

         The claimant argues that the ALJ erred in giving greater weight to the opinion of Dr. Anigbogu than the opinion of Dr. Olivier on grounds Dr. Olivier is the claimant's treating physician, while Dr. Anigbogu merely answered medical interrogatories and never examined the claimant. The claimant also argues the ALJ erred as a matter of law in not following the regulatory guidelines in discounting Dr. Olivier's opinions.

         As a general rule, the opinion of the treating physician who is familiar with the claimant's impairments, treatments and responses, should be accorded great weight in determining disability. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000), citing Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). A treating physician's opinion on the nature and severity of a patient's impairment will be given controlling weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with ... other substantial evidence.” Newton, 209 F.3d at 455, citing Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995), citing 20 C.F.R. §404.1527(d)(2). “The opinion of a specialist generally is accorded greater weight than that of a non-specialist.” Paul v. Shalala, 29 F.3d 208, 211 (5th Cir.1994).

         Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, “the ALJ has sole responsibility for determining a claimant's disability status.” Id. “‘[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.'” Id. The treating physician's opinions are not conclusive. See Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999). The opinions may be assigned little or no weight when good cause is shown. Greenspan, 38 F.3d at 237. Good cause may permit an ALJ to discount the weight of a treating physician relative to other experts where the treating physician's evidence is conclusory, is unsupported by ...


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