United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
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.
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
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.
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.
in the Record
Walters' Reports and Testimony:
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.
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.
hearing before the ALJ was held on March 13, 2017. R. at 33.
Walters was represented by counsel. R. at 33.
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.
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.
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.
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.
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. 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
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
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.
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.
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
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.
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.
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
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
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.
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.
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.
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
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 ...