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Walters v. Saul

United States District Court, E.D. Louisiana

July 19, 2019

DWAYNE WALTERS
v.
ANDREW SAUL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION

         SECTION “E” (1)

          SUSIE MORGAN, JUDGE

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Dwayne Walters, seeks judicial review, pursuant to Section 405(g) of the Social Security Act (the “Act”), of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying his claim for disability insurance benefits (“DIB”) under Title II of the Act, 42 U.S.C. § 423. The matter has been fully briefed on cross-motions for summary judgment. For the following reasons, IT IS RECOMMENDED that the Motion for Summary Judgment filed by the plaintiff (Rec. Doc. 17) be DENIED; and the Motion for Summary Judgment filed by the Commissioner (Rec. Doc. 18) be GRANTED.

         Procedural Background

         Mr. Walters applied for DIB on January 29, 2015, asserting a disability onset date of October 28, 2014. He alleged the following illnesses, injuries, or conditions: lumbar degenerative disc disease and gum disease. On February 3, 2016, his claim was denied by the state agency. The Disability Determination Explanations concluded:

[t]he medical evidence shows that although you experience back and right knee discomfort, you are still able to move about and you can use your arms, hands, and legs in a satisfactory manner. Although you have stated that you have gum disease, with the available information we cannot determine a disabling impairment. Though you stated you are depressed at times, your records do now show any treatment for this condition. The medical evidence does not show any other disabling condition that would prevent you from working.

         R. at 77.

         Mr. Walters obtained counsel and requested a hearing before an Administrative Law Judge (“ALJ”), which was held on March 13, 2017. On June 7, 2017, the ALJ issued an adverse decision. Mr. Walters timely appealed to the Appeals Council, which denied review on April 26, 2018.

         On June 11, 2018, Mr. Walters filed a Complaint in federal court to review the Commissioner's decision. (Rec. Doc. 1). The Commissioner answered and filed the administrative record. (Rec. Docs. 13, 14). The parties filed cross-motions for summary judgment. (Rec. Docs. 17, 18). Mr. Walters is represented by counsel.

         Evidence in the Record

         Mr. Walters' Reports and Testimony:

         Mr. Walters completed a Function Report on April 7, 2015. R. at 215-222. He reported that he cannot bend down to the floor, he cannot lift much weight, and cannot ride or drive. R. at 215. He reported that his medication makes him sleepy most of the time. R. at 215. He described a typical day as watching some TV, eating something, and going for a walk outside with the aid of his walker. R. at 216. He folds clothes, but said that after about 10-15 minutes he begins to hurt. R. at 216. He reported that he sometimes wakes up from sleeping because of pain. R. at 216. He reported needing help with some personal care including putting on socks and pants and washing his legs and feet because he cannot bend down that far. R. at 216. Mr. Walters can prepare a sandwich or heat something in the microwave, but his wife or daughter prepare meals for him. R. at 217. He reported that he used to help with cooking but can no longer do so because the heat from the stove bothers him, he tires out quickly, and he cannot lift heavy pots. R. at 217. He does not do outside chores but helps with the laundry by putting clothes in the laundry. R. at 217. He reported that he could lift about 3 or 4 pounds and could walk about 50 feet. R. at 220.

         Mr. Walters completed a pain questionnaire on April 13, 2015. R. at 238-40. He described his lower back pain as aching, crushing, stabbing, throbbing, and stinging. R. at 238. He reported the pain began in 2006 or 2007 and that it began affecting his activities around 2009. R. at 238. He reported using a walking cane, a back brace, and bone fusion machine daily. R. at 239.

         A hearing before the ALJ was held on March 13, 2017. R. at 33. Walters was represented by counsel. R. at 33.

         Mr. Walters testified that the last time he was working he worked as a delivery truck driver for Coburn's Supply. R. at 44-45. He stopped working when he had back surgery on October 29, 2014. R. at 45.

         Mr. Walters described his back pain as a sharp pain on his right lower back and sometimes a dull burning pain in his back. R. at 49. He testified that his pain got worse following his surgery. R. at 49. He testified that he used a ball stimulator and continues to use it about once a month. R. at .49-50. Mr. Walters described his knee pain as causing his whole right leg to go numb. R. at 51. Sometimes he loses his balance. R. at 51.

         Mr. Walters testified that he can only walk about 100 yards, and then he loses his balance. R. at 46; 52. He testified that he cannot pick up anything heavy. R. at 46. He said he lays down if his back hurts, or takes a shower and let hot water run over it, or lays on a heating pad. R. at 46. He testified that he can stand for about 35-40 minutes before he needs to sit down because of a “dull sharp pain” in his back. R. at 52. He testified that when he bends over, he gets a sharp pain in his back. R. at 52.

         Mr. Walters testified that he able to drive, “to a certain extent.” R. at 48. He drives himself to his appointments at Lallie Kemp, which is five miles from where he lives. R. at 48. If he drives long distances his back hurts from bouncing up and down. R. at 53. He testified that he helps his wife with chores, including putting clothes in the washer, sweeping around the house, and taking out the trash. R. at 53.

         Medical Records:

         On July 9, 2014, x-rays of the lumbar spine were performed at the North Oaks Medical Center. R. at 366. Minimal degenerative disc disease findings at ¶ 5-S1 were observed. Id. Mr. Walters returned to the North Oaks Medical Center on July 12, 2014 for an MRI of the lumbar spine without contrast. R. at 364. At ¶ 5-S1, disc degeneration and protruded disc herniation with annular fissure was observed and noted to be similar in magnitude to 8/23/11.[1] R. at 364. It was noted that “[t]he disc margin abuts the left S1 root without nerve root displacement or compression.” Facet joints were hypertrophic. And there was “severe right foramen stenosis and moderate to severe left neural foramen stenosis.” Id.

         On September 2, 2014, Mr. Walters visited Cypress Pointe Surgical Hospital in Hammond, Louisiana, reporting low back pain with an intensity of 9 out of 10. R. at 293. It appears surgery was scheduled for October 30, 2014. R. at 291. On September 3, 2014, Mr. Walters returned to Cypress Point for a 2-level lumbar discography (at L4-L5 and L5-S1) with negative control. R. at 286. A CT scan of the lumbar spine without contrast was performed thereafter on the same date. R. at 284. The L5-S1 disc was found positive for abnormal nucleogram, with posterior annular fissure with contrast extravasation into the epidural space. R. at 284-85; 287. It was noted that positive familiar pain response was elicited from the patient upon injection at the L5-S1 level. R. at 287.

         Mr. Walters presented to the NeuroMedical Center Clinic on October 3, 2014, complaining of back pain with an intensity of 8 to 9 on a 10-point scale. R. at 295. The following medications were listed: Soma 350 mg; Opana ER 5 mg; Crestor 10mg; Norco 10-325 mg; Tizanidine HCL. R. at 297. His gait and posture were recorded as normal. Id. His strength in the upper and lower extremities was normal. Id. There was no paraspinal muscle spasm. Id. Dr. Erik Oberlander reported that “Mr. Walters continues with severe lower back pain and right leg pain. He had a positive discography at ¶ 5-S1 with L4-5 normal control. He has failed conservative therapy with physical therapy and injections. He is interested in the surgery.” R. at 298. The risks and benefits were discussed, and Mr. Walters was ready to proceed. R. at 298.

         On October 30, 2014, Mr. Walters underwent the following surgical procedures at Cypress Pointe: a right L5-S1 transforaminal interbody fusion with transpedicular and far lateral decompression of the exiting and traversing nerve; pedicle screw instrumented fusion from L5-S1; and post lateral fusion from L5-S1. R. at 299. He tolerated the procedure well, his postoperative course was routine, and he was discharged on November 1, 2014. R. at 302. He was instructed to wear a brace with ambulation and to avoid driving, bending, lifting, and twisting. R. at 302.

         Mr. Walters followed up with Dr. Oberlander at the NeuroMedical Center Clinic on November 14, 2014, complaining of pain with an intensity of 8 out of 10, but reporting that he felt he was slowly getting better. R. at 346. He complained of back pain, stiffness, leg pain at night and leg pain with exertion, but denied joint pain or swelling, muscle weakness, or sciatica. R. at 347. It was noted that he “still [has] a long way to go in the healing process.” R. at 348.

         An x-ray of the lumbar spine was performed at Cypress Point on December 9, 2014. R. at 303. There was “mild moderate disc space narrowing at ¶ 2-L3 and severe narrowing at ¶ 5-S1.” Id. Alignment was satisfactory and vertebral body height was maintained. Id. The surrounding soft tissues demonstrated atherosclerotic disease. Id. An impression of mild moderate degenerative disc disease was reported. Id.

         Mr. Walters returned to the NeuroMedical Center Clinic on December 12, 2014, reporting pain with an intensity of 7 out of 10. R. at 341. It was noted that his Cypress Pointe x-rays “look good, ” but that he was still having a lot of pain and requested pain medicine. R. at 343. Id.

         The first medical record in the file reflecting Mr. Walters' visits with his treating physician Dr. Anthony Zerangue is for a December 30, 2014 appointment, although the visit is noted to be a “follow-up” for “med refills.” R. at 353. Mr. Walters was marked positive for back pain. Id. His gait was noted to be antalgic. Id.

         Mr. Walters returned to the NeuroMedical Center Clinic on January 15, 2015, complaining of pain with an intensity of 8 out of 10. R. at 337. He reported a sharp shooting pain on either side of his back and some muscle spasms in his right leg at times. Id. He still required pain medication, which he was receiving from his primary care practitioner. R. at 339. A CT scan to evaluate his fusion and check his hardware was suggested. R. at 339. It was noted that Mr. Walters was “still unable to work and may try to get disability due to the fact that he is unable to return to his job with restrictions.” Id.

         Mr. Walters returned to Dr. Oberlander at the NeuroMedical Center Clinic on March 6, 2015. R. at 333. A CT scan was reviewed, and Dr. Oberlander concluded that “he appears to be solidly fused after his surgery.” R. at 335. It was noted that Mr. Walters “still has a bad lower back pain.” Id. Dr. Oberlander reported that Mr. Walters needed more time to heal and that it would take a year. Id. He noted that Mr. Walters should remain out of work and should follow up in six months. Id.

         Mr. Walters returned to Dr. Zerangue on April 1, 2015, for medication refills, complaining of arthritis in his shoulder and hip and his right leg going numb. R. at 352. He was marked positive for joint pain and back pain. Id. His gait was marked normal, although the notes report that Mr. Walters uses a cane to walk and has an antalgic gait. Id.

         On April 7, 2015, two x-rays of the right hip were performed at the North Oaks Medical Center. R. at 362. There was no suspicious hip abnormality or asymmetry or change in hip regions. Id. Two x-rays of the right shoulder were also performed. R. at 363. Osteoarthritis mostly affecting the acromioclavicular joint was observed. Id.

         Mr. Walters followed up with Dr. Zerangue on June 25, 2015, for medication refills. R. at 351. He was positive for back pain and depression. R. at 351. His gait was noted to be antalgic. Id. Mr. Walters' back pain was reported to be bothersome “but gradually slightly” improving, “though not ever to the point that he could do desk work.” Id.

         Mr. Walters followed up with Dr. Zerangue on September 21, 2015, for medication refills. R. at 433. He was noted positive for back pain. Id. His gait ...


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