Nelson v. Social Security Administration

Filing 17

ORDER AND REASONS denying plaintiff's 11 Motion for Summary Judgment and granting defendant's 14 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 3/10/2015. (lag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBORAH PIDGEON NELSON

CIVIL ACTION

VERSUS

NO. 13-6118

SOCIAL SECURITY ADMINISTRATION

SECTION: "B"(3)

ORDER AND REASONS
I. Nature of Motion and Relief Sought
Before the Court is Plaintiff's Objection to the Magistrate
Judge's

Report

(“Nelson”),
upholding

seeks

the

Recommendation.1

and

review

denial

of

of
her

the

Plaintiff,

Magistrate

claim

for

Deborah

Judge’s

disability

Nelson

decision
insurance

benefits ("DIB") pursuant to Title 42 U.S.C. § 405(g).2
Having considered Nelson’s objections, the cross motions
for summary judgment filed by both Nelson and Defendant Social
Security

Administration

Judge’s

Report

and

(the

“Commissioner”),

Recommendation,

the

the

record,

Magistrate
and

the

applicable law, for the following reasons, the Court GRANTS the
Commissioner’s motion for summary judgment and DENIES Nelson’s
motion for summary judgment.3

1

Rec. Doc. No. 16.
Rec. Doc. No. 15.
3
We are grateful for the work on this case by Lauren Michel, a Tulane
Law School extern with our Chambers.
2

Procedural History
Deborah
subject

Pidgeon

application

Nelson,
for

DIB

Plaintiff
with

herein,
Social

the

filed

the

Security

Administration

on September 28, 2011, alleging disability

as

2010.4 In

of

March

that

31,

appears

conditions

in

the

resulting

in

a

“Disability Report-Adult” form

administrative
Plaintiff’s

Plaintiff’s

initial

level

application

of

the

inability

below,
to

work

the
were

malformation.5 On October 12,

identified as lupus and chiari
2011,

record

for

DIB

Commissioner’s

was

denied

at

administrative

the

review

process.6
Pursuant
before
May

an

29,

to

Plaintiff’s

Administrative
2012,

at

which

Law

request,
Judge

Plaintiff,

counsel, appeared and testified.7
issued a

a

hearing

(“ALJ”)
who

was

went

de

novo

forward

on

represented

by

On June 26, 2012, the ALJ

written decision, concluding that Plaintiff was not

disabled within the meaning of the Social Security Act.8
The Appeals Council (“AC”) subsequently denied Plaintiff’s
request for review of the ALJ’s decision on September 6, 2013,
thus

making

the

Commissioner.9

4
5
6
7
8
9

Rec.
Rec.
Rec.
Rec.
Rec.
Rec.

Doc.
Doc.
Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.
No.
No.

ALJ’s

decision

It is from that

15,
15,
15,
15,
15,
15,

pp.
pp.
pp.
pp.
pp.
pp.

the

decision

of

the

unfavorable decision that the

1.
1.
1.
1.
1.
2 , Tr. pp. 1-6.

2

final

Plaintiff seeks judicial review pursuant to 42 U.S.C. §405(g).
In her cross-motion for summary judgment, Plaintiff frames
the issues for judicial review as follows:
I.

THE ALJ FAILED TO APPLY THE CORRECT LEGAL
STANDARD IN FINDING THAT PLAINTIFF’S CHIARI
MALFORMATION WAS NOT A SEVERE IMPAIRMENT.

II.

THE ALJ DID NOT APPLY THE CORRECT LEGAL
STANDARD
IN
ASSESSING
PLAINTIFF’S
RESIDUAL
FUNCTIONAL CAPACITY AND THE FINDING IS NOT
SUPPORTED BY SUBSTANTIAL EVIDENCE.

III.

THE ALJ FAILED TO APPLY THE PROPER LEGAL
STANDARD TO DETERMINE THE CREDIBILITY OF THE
PLAINTIFF.10

Relevant to a resolution of those issues are the following
findings made by the ALJ:
1. [t]he
claimant
meets
the
insured
status
requirements of the Social Security Act through
December 31, 2015.
2. [t]he claimant has not engaged in substantial
gainful activity since March 31, 2010, the alleged
onset dated (20 CFR 404.1571 et seq.).
3. [t]he
claimant
has
the
following
severe
impairments:
degenerative
disc
disease
and
systemic
lupus
erythematosus
(SLE)
(20
CFR
404.1520(c)).
4. [t]he claimant does not have an impairment or
combination
of
impairments
that
meets
or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix
1 (20 CFR
404.1520(d), 404.1520(d),
404.1525 and 404.1526).

10

Rec. Doc. No. 15, pp. 2, Rec. doc. 11-1, p. 5.

3

5. [a]fter
careful
consideration
of
the
entire
record, the undersigned finds that the claimant
has the residual functional capacity to perform
the full range of light work, generally defined
in
20
CFR
404.1567(b)
as
work
requiring
lifting/carrying no more than 10 pounds frequently
and 20 pounds occasionally, and no more than 6
hours of standing/walking in an 8 hour workday.
6. [t]he claimant is capable of performing past
relevant work as an administrative clerk. This
work does not require the performance of workrelated activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565).
7. [t]he claimant has not been under a disability,
as defined in the Social Security Act, from March
31, 2010, through the date of this decision (20
CFR 404.1520(f)).11
Facts of the Case
The
relevant

medical
time

evidence

period

that

begins

was

generated

during

the

with a treatment note from the

Ochsner Clinic in Kenner where Plaintiff was seen to obtain
refills on her medication and to establish a relationship with
a new primary care physician

(“PCP”). Plaintiff presented as a

fifty-two year old individual with a history of

hypertension,

hyperlipidemia, and lupus. No acute symptoms were present and
the

results

assessment
testing

was

of
was

a

physical

examination

hypertension

scheduled

and

and

12

Plaintiff

Rec. Doc. No. 15, pp. 3.
Rec. Doc. No. 15, pp. 5, Tr. pp. 215-217.

4

normal.

hyperlipidemia.

for Atenolol, Lotrel, and Lovastatin.12

11

were

was

given

The

Further

prescriptions

Plaintiff was seen at the Ochsner Clinic again on June 9,
2009 for complaints of back pain that had begun when she bent
over to change her shoes. That pain was described as sharp and
intermittent, worse with certain
“4”

on

a

associated

scale

of

“1”

to

movements, and at a level of

“10.”

There

was

no

radiation

with the pain and no weakness or numbness of the

lower extremities. Otherwise, all other
normal with no acute

complaints.

bodily systems

were

Upon physical examination,

there was tenderness to percussion of the paraspinous muscles
of the lower back as well as
strength

was

5/5

in

the

muscle spasms. However, motor
lower

extremities

with

good

sensation and straight leg raising was negative. The assessment
was low back pain. Plaintiff was administered an injection of
Kenalog and was given prescriptions for Flexeril,

Relafen, and

Ultram.13
Plaintiff was next seen at the Ochsner Clinic on October
2, 2009 for a routine

physical. Her

back

pain

and she had no acute complaints. Plaintiff was
Shell

at

the

unremarkable
medications.14

time.

and

The

Plaintiff

Mammographic

results
was

of

merely

14
15

resolved

working for

examination

given

refills

of

were
her

studies performed on December 15,

2009 revealed no evidence of malignancy.15

13

the

had

Rec. Doc. No. 15, pp. 6, Tr. pp. 213-214.
Rec. Doc. No. 15, pp. 6, Tr. pp. 210-212.
Rec. Doc. No. 15, pp. 6, Tr. p. 220.

5

On January 2, 2010,

Plaintiff was seen by Dr. Susan Caldwell for complaints of a
headache and vomiting. The results of a physical examination
were

normal.

The

diagnosis

was

nausea

and

vomiting

likely

secondary to a viral infection and Plaintiff was treated with
Phenergan.16
The next treatment note was not generated until September
11, 2010, when Plaintiff

was seen at the Ochsner Clinic for

headaches of a few hours in duration associated with

upper

back pain, nausea, and an episode of vomiting. The headaches
were

mainly

blurring

of

frontal
vision.

with
The

no

radiation,

results

of

a

photophobia,

physical

exam

or
were

essentially normal but there was minimal stiffness to the neck
due to upper back muscle

spasm. The diagnosis was headaches,

muscle spasm, and hypertension as a result of an inability to
self-medicate due to nausea. Bloodwork was done and Plaintiff
was prescribed Toradol, Naproxen, Phenergan, and Flexeril.17
Plaintiff was next seen
5,

2010

for

a

routine

at the Ochsner Clinic on October

physical.

No

acute

complaints

were

voiced, including any pertaining to headaches. The results of
the

exam

performed.
October

were

wholly

unremarkable.

17

testing

(Rec. Doc. No. 15, Tr. pp. 205-207, 362-365).

was
On

28, 2010, Plaintiff was seen by Dr. Taura Parquet of

the Ochsner Clinic for complaints of
16

Routine

constant left leg pain

Rec. Doc. No. 15, pp. 6, Tr. pp. 208-209.
Rec. Doc. No. 15, pp. 7, Tr. pp. 347-348, 366.

6

for the previous week, described as a cramping sensation at a
level of “5.” Trauma, weakness, and numbness were denied. Upon
physical examination, there was tenderness to palpation of the
left leg with mild muscle spasm but motor strength was 5/5 in
the lower extremities.
was

prescribed

The assessment was leg pain. Plaintiff

Norflex

and

Ultracet

and

was

instructed

to

apply warm compresses to the leg and to stretch.18
On November 14, 2010, Plaintiff presented to the Ochsner
Emergency Room (“ER”)

with complaints of nausea and vomiting

several times that day as well as a mild headache.
tests

were

run

administration
discharged

Plaintiff

of

home

Ondansetron

Plaintiff

Toradol

in

and

was

and

a

good

and

Zofran.

condition

diagnosis

was

of

with

treated
She
a

nausea

was

Various

with

ultimately

prescription
and

IV

for

vomiting.19

followed by Dr. Parquet the next day at the

Ochsner Clinic and was said to be improving. She was diagnosed
with acute nausea, vomiting, and dehydration and was treated
with Phenergan. NSAID’s were to be discontinued and Zofran and
Protonix were

prescribed.20

Plaintiff was next seen at the

Ochsner ER on November 21, 2010 for complaints of a

headache

of one week’s duration and multiple episodes of vomiting. She
was administered
ultimately
18
19
20

IV saline, Dilaudid, and Phenergan and was

discharged

home

in

good

Rec. Doc. No. 15, pp. 7, Tr. pp. 203-204.
Rec. Doc. No. 15, pp. 7, Tr. pp. 223-262.
Rec. Doc. No. 15, pp. 7, Tr. pp. 201-202.

7

condition

with

prescriptions
The

for

diagnosis

Plaintiff

was

explaining

Hydrocodone-Acetaminophen

was

a

followed

that

her

headache,
by

Dr.

headache

nausea,

Parquet

was

and

vomiting.21

and

the

different

Ondansetron.

following

day,

from those

that

she had experienced in the past. In the “history of present
illness” portion of the treatment note, headaches were denied
as

were

nausea,

vomiting,

or

any

other

acute

complaints.

Unfortunately, the second page of the treatment note from this
date is not included in the administrative record that has been
provided to the Court.22
On December 10, 2010, Plaintiff underwent a CT scan of
the head without contrast that produced no evidence of acute
intracranial abnormality but did reveal findings suspicious of
underlying

cerebellar

malformation. As in
ER

visits,

Plaintiff

tonsillar

December 17, 2010.24

versus

chiari

one

the admitting paperwork from her previous

Plaintiff

underwent

ectopia

was

now

mammogram

and

described
bone

“retired.”23

as

density

studies

on

An eye exam was conducted on January 10,

2011.25
On

July

5,

2010,

Plaintiff

returned

to

the

Ochsner

Clinic to establish a treatment relationship with a new PCP,
Dr.
21
22
23
24
25

Rec.
Rec.
Rec.
Rec.
Rec.

Susan
Doc.
Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.
No.

Caldwell.
15,
15,
15,
15,
15,

pp.
pp.
pp.
pp.
pp.

8,
8,
8,
8,
8,

Plaintiff
Tr.
Tr.
Tr.
Tr.
Tr.

reported

pp. 263-272.
p. 200.
pp. 273-274, 219.
pp. 373-375, 218.
p. 346.

8

that

she

had

experienced no headaches since her ER visits at the end of
2010. She also recalled having
the

1980’s

accompanied

by

a

been diagnosed with lupus in
rash

further symptoms since then.

and

proteinuria

but

no

The sole complaint voiced by

Plaintiff was a sore throat of four days’ duration with severe
nasal congestion. A physical examination was unremarkable. The
diagnosis

was

hypertension,
abnormal

unspecified;

CT

malformation.

unspecified

scan

of

hyperlipidemia;
allergic

the

head

essential

rhinitis;
suggestive

and,
of

an

chiari

Various tests were run and an MRI of the brain

was to be scheduled.26
Pursuant to a referral from Dr. Caldwell, Plaintiff was
seen by

Dr.

further

evaluation

Although

she

year,

she

numbness

Cuong

had

did

in

Bui

at

of

her

suffered
have

the arms

Ochsner

possible
no

August
chiari

headaches

increased
and

on

since

feelings

shoulders

of

that

was

16,

2011

for

malformation.
the

previous

tingling

and

occasionally

exacerbated by Valsalva maneuvers. Upon physical examination,
Plaintiff had

some mild dysmetria, a slight amount of trace,

and some difficulty with tandem gait but

reflexes were equal

and symmetric, strength was 5/5 in all extremities, and there
was no

tenderness to palpation.

Based on the results of his

evaluation and the other objective data

26

available for review,

Rec. Doc. No. 15, pp. 9, Tr. pp. 197-199, 359-361, 426-428.

9

Dr.

Bui

believed

condition was

that

further

evaluation

of

Plaintiff’s

warranted. To that end, an MRI of the cervical

spine without contrast was to be ordered.27
On August 30, 2011, Plaintiff presented to the Ochsner ER
again complaining of a
evening

that

was

frontal

constant

and

associated

with

upper

mid

associated

photophobia

and

headache
caused

back

aching,

pain.

nausea

since

the

moderate

Plaintiff

with

previous

four

pain

also

had

episodes

of

vomiting. After injections of Toradol, Benadryl, and Compazine
failed
IV

to

alleviate

administration

which

provided

Plaintiff’s

of

normal

significant

symptoms

saline,

relief.

she

was

morphine,

The

placed
and

attending

on

Zofran

physician

suspected that the nausea and vomiting were associated with an
acute viral illness and not the headache. The diagnosis was
nausea and
were

vomiting

and

a

headache. Discharge

Butalbital-Acetaminophen-caffeine

and

prescriptions

Zofran

ODT

and

Plaintiff was to follow-up with her PCP.28
As ordered, Plaintiff underwent an MRI of the cervical
spine without contrast on

September 27, 2011 which revealed

ectopia of the cerebellar tonsils extending below the foramen
magnum but no cerebellar tonsilar “breaking” as typically seen
in

chiari

Bui,
27
28

in

one

malformations

turn,

interpreted

and

no

those

syrinx
test

results

Rec. Doc. No. 15, pp. 9, Tr. pp. 344-345, 413-415.
Rec. Doc. No. 15, pp. 10, Tr. pp. 275-282.

10

identified.
as

Dr.
more

suggestive

of

migraine

headaches

symptoms and Plaintiff was

than

actual

chiari-type

to be referred to Dr. Redillas, a

headache specialist in the Neurology Department, for a

more

definitive diagnosis.29
On

October

Administration’s
designed

to

3,

2011,

“Function

elicit

Plaintiff

Report-

information

completed

Adult”

about

form

how

her

that

the
is

conditions

limited her activities. There, Plaintiff wrote that because of
her lupus,

fatigue and joint

pain were more

frequent.

She

reportedly could not sit for extended periods of time as she
would

become

lightheaded

and

would

need

to

with her back kept her “down” for three to
taking

anti-inflammatories

and

muscle

rest.

Flare-ups

four days after

relaxers

and

she

had

recently begun experiencing headaches.
A

typical

daily

routine

consisted

of

taking

her

medications, getting her grandson on the bus on school days,
preparing meals, watching TV, running errands and, on two days
per week, checking up on her son and mother-in-law. Back flareups caused trouble in dressing and getting in and out of the
bathtub and those and leg pain affected her sleep. Plaintiff
prepared meals two days per week and did cleaning, laundry,
and ironing as needed but her husband assisted her with the
chores.

29

She got out of the house daily on her own and could

Rec. Doc. No. 15, pp. 10, Tr. pp. 371-372, 433-434, 343.

11

drive

a

car.

interests

She

included

went

shopping

watching

provided that she did not

TV

about

and

once

doing

per

month.

crossword

Her

puzzles,

sit for too long and could move

around. Social activities included Sunday dinners, meeting with
family and friends, and going to church and the hair salon.
Plaintiff indicated that her

conditions affected her ability

to lift, squat, bend, reach, sit, kneel, and concentrate. She
could follow instructions and handle stress without difficulty
and got along well with authority figures.30
Pursuant to the referral by Dr. Bui, on October 21, 2011,
Plaintiff was seen by Dr. Carol Redillas of the Ochsner Clinic
for further evaluation of her headaches which had been ongoing
for

the

previous

intensity,

and

year

and

duration.

experiencing headaches

at

had
At

been
that

a rate

of

stable
time,
one

to

in

frequency,

Plaintiff
two per

was

month,

each lasting a few hours with successful abortive therapy and
rest in a dark room. The headaches were gradual in onset with
non-radiating mild to severe midfrontal throbbing

sensations

associated with bilateral shoulder tightness, nausea, vomiting,
and

photophobia.

headaches

were

Specific
usually

triggers

present

upon

were

unknown

awakening.

as

the

Plaintiff

reported that Hydrocodone, Fioricet, and Tylenol were effective
for pain

30

management. She also recalled her three ER visits in

Rec. Doc. No. 15, pp. 11, Tr. pp. 151-158.

12

the previous year for acute treatment.

Plaintiff scored 46 on

a Headache Impact Test (“HIT-6”), which equates to little or
no impact on her life at that time. Based upon the results
of her physical examination of Plaintiff and a review of the
objective

test

episodic

results,

migraine

hypertension,
preventative

and

Dr.

Redillas’

without

aura,

asymptomatic

therapy

plan

impressions
poorly

cerebellar

involved

were

controlled

ectopia.

increasing

the

The

dosage

of

Atenolol and the abortive therapy plan consisted of Vicodin,
Phenergan, and Ketoprofen.

Plaintiff was also

counseled on

other headache-avoidance measures.31
Bloodwork
November

21,

was

performed

on

2011,

Plaintiff

was

Detiege of the Ochsner Clinic
identified
early

as

1990’s

seen

by

15,
Dr.

2011.32
Tamika

On

Webb-

with the chief complaint being

lupus. Plaintiff
and

November

relatively

reported
limited

a

diagnosis

treatment

in

the

thereafter.

Symptoms included photosensitivity and a rash on her arms with
sun exposure but no other traditional
visit,

Plaintiff

obtaining Social

relayed

to

the

symptoms.

doctor

an

During this
interest

in

Security benefits, advising she had already

retired from an “administrative job.”
Persistent
Naprosyn
31
32

were

headaches and
also

noted

as

back

pain that

was some

with

tingling in the left

Rec. Doc. No. 15, pp. 12, Tr. pp. 329-342, 403-411.
Rec. Doc. No. 15, pp. 12, Tr. pp. 356-358, 423-425.

13

improved

fifth toe. However, at the time of the evaluation Plaintiff
rated

her

pain

as

a

“0.”

A

physical

examination

essentially normal. The impressions were lupus with
manifestations

but

no

treatment

for

several

years,

was

various
fatigue,

back pain, and migraines. Various studies were done, including
x-rays that revealed degenerative changes
and

the

possible

presence

nephrolithiasis

but

abnormalities.33
which

of

no

a

of the lumbar spine

gallstone

significant

Mammography was

done

on

versus

right

cardiopulmonary
December 19, 2011

demonstrated no evidence of malignancy.34

An eye exam

was conducted on January 5, 2012 which revealed no changes from
the previous visit.35
On

January

20,

2012,

Plaintiff

attended

a

three-month

follow-up appointment with Dr. Radillas. She reported no side
effects from Atenolol. According to the diary that she
roughly

75%

of

the

time,

Plaintiff

had

experienced

kept
one

headache in October, three in November, one in December, and
three so far in January, all of which were mild except one,
which was moderate in intensity. Once again, Plaintiff scored
46 on the Headache Impact Test. The impressions were episodic
migraine without aura and improved hypertension. Plaintiff was
counseled

and

was

continued

on

33

Atenolol

for

preventative

Rec. Doc. No. 15, pp. 12, Tr. pp. 326-328, 351-355, 368-370, 400402, 418-422, 430-432.
34
Rec. Doc. No. 15, pp. 12, Tr. pp. 367, 429.
35
Rec. Doc. No. 15, pp. 12, Tr. pp. 325, 399.

14

therapy and
therapy.

A

Phenergan, Ketoprofen, and Imitrex for abortive
further

follow-up

visit

was

to

occur

in

eight

Dr.

Webb-

months.36
On
Detiege

February
for

2012,

further

condition was
testing

6,

was

consultation

unchanged
performed

Plaintiff

from
and

the

the

returned

regarding
previous

results

of

to

her

lupus.

Her

visit. Diagnostic
those

tests

and

earlier ones were reviewed. The impressions were a history of
lupus with

various manifestations but no evidence of activity

at the time, fatigue, back pain, migraines,

elevated ESR and

CRP, and dizziness. Further testing was to be scheduled and
Plaintiff was to return in two months.37
Plaintiff underwent an abdominal ultrasound on March 16,
2012 which revealed a mobile gallstone within the gallbladder
but

no

secondary

signs

suggestive

of

acute

cholecystitis,

borderline hepatomegaly without definite focal hepatic lesion,
and a 2.8 cm.

anechoic focus right renal pelvis suggestive of

a parapelvic cyst but without calyceal

dilation.38

presented to the Ochsner ER on March 24, 2012

Plaintiff

complaining of

left leg pain for one month which had worsened the previous
day. The pain

was described as crampy, deep, and moderate in

severity. Physical therapy had begun the previous day.

36
37
38

Rec. Doc. No. 15, pp. 13, Tr. pp. 321-324, 395-398.
Rec. Doc. No. 15, pp. 13, Tr. pp. 314-320, 350, 388-394, 417.
Rec. Doc. No. 15, pp. 13, Tr. pp. 288-290.

15

Upon

physical

examination,

left upper leg but no

there

was tenderness

to the

other positive findings. The diagnosis

was a hip and thigh strain. An injection of Solu- Medrol was
administered

and

Plaintiff

was

prescribed

Oxycodone.39

On

a

referral from Dr. Caldwell, Plaintiff was seen by Dr. Hazem
Eissa

on

March

identified
radiated

as
down

associated

28,

low

2012

back

the

left

parathesias.

with

pain

the
five

of

chief
weeks’

posterior
Naproxen

leg

helped

complaint

being

duration

which

into

the

foot

minimally.

with

The pain

was described as throbbing, grabbing, tight, and tingling in
the

posterior

worse

with

and

lateral

sitting,

left

standing,

leg

with

lying,

numbness.

walking,

and

It

was

in

the

morning but was improved with rest, sitting, and lying down.
It

was

following

noted

that

Plaintiff’s

commencement

of

symptoms

physical

were

therapy.

exacerbated

Upon

physical

examination, straight leg raising was positive on the left but
muscle strength in the lower extremities was within functional
limits,

5/5

bilaterally.

The

assessment

was

lumbar

radiculopathy. The treatment plan included: 1) an MRI of the
lumbar spine without contrast; 2) a left L5-S1 transforaminal
epidural

steroid

injection

(“ESI”)

or

appropriate

procedure

after review of the MRI results; 3) one to two tablets of
Tramadol three times per day or as needed; and, 4) return to

39

Rec. Doc. No. 15, pp. 13, Tr. pp. 291-300.

16

the clinic two weeks after the MRI.40
On

March

30,

2012,

Plaintiff

Croll of the Ochsner Clinic for

was

seen

by

Dr.

Tiffany

six-month follow-up of her

chiari malformation. No complaints were raised at the time and
Plaintiff reported that since January, she had not experienced
any headaches (which had
that).

The

warranting

impression
no

been very mild in nature prior to

was

asymptomatic

neurosurgical

chiari

intervention.

malformation

Plaintiff

was

to

return to the clinic on an as-needed basis.41 She was next seen
by Dr. Evangeline Scopelitis of the Ochsner Clinic on April 9,
2012

with

Plaintiff
Social
was

the

chief

again

expressed

being
an

identified

interest

as

in

lupus.

obtaining

Security benefits due to persistent low back pain that

worse

with

musculoskeletal
results

complaint

of

sitting
exam

and

improved

produced

diagnostic

tests

with

unremarkable

were

reviewed.

were: 1) a history of lupus with various

NSAID’s.
results.

The

A
The

impressions

past manifestations

but without treatment for several years and no evidence of
activity; 2)
migraines;

5)

fatigue

due

elevated

to

ESR

back
and

pain;
CRP;

3)

and,

back
6)

pain;

4)

dizziness,

resolved. Given the absence of active symptoms, no treatment
was

recommended for Plaintiff’s lupus, her low back pain was

being addressed with pain management, and she was to return in
40
41

Rec. Doc. No. 15, pp. 14, Tr. pp. 309-313, 383-387.
Rec. Doc. No. 15, pp. 14, Tr. pp. 306-308, 381-382.

17

four to six months or as needed.42 The final medical records
that

were

admitted

in

the

administrative

proceedings

below

document a routine abscess culture of Plaintiff’s forearm on
May 7, 2012 that was negative.43
As noted earlier, a hearing before an ALJ went forward on
May 29, 2012 with Plaintiff and her attorney in attendance.
After

the

documentary

exhibits

were

admitted

into evidence

Plaintiff took the stand and was questioned by the ALJ. She was
55 years old at the time, had a high school diploma and had
attended

eighteen

months

of

business

school,

and

had

last

worked up until March 31, 2010 when she was let go as a result
of

a

reduction-in-workforce.

Following

that

employment, Plaintiff received severance pay
2011.

When

asked

why

she

was

unable

break

in

until sometime in

to

work,

Plaintiff

identified pain in the legs and arms, an inability to sit or
stand

for

extended

periods

of

time

or

to

walk

great

distances, and dizziness and light headedness on sitting too
long or driving. Plaintiff

attributed her joint pain to lupus

and her leg pain to problems with her back.44
Upon

being

tendered

to

her

questioning Plaintiff testified that

attorney
she

had

for
worked

further
at

the

Shell Norco plant for thirty-two years in various capacities,

42
43
44

Rec. Doc. No. 15, pp. 15, Tr. pp. 302-305, 377-380.
Rec. Doc. No. 15, pp. 15, Tr. pp. 349, 416.
Rec. Doc. No. 15, pp. 15, Tr. pp. 30-34.

18

most

recently

were

an

from

done

as

a

administrative
sitting

associate,

position.

all

When

of

which

referred

to

diagnostic studies that had recently been performed, Plaintiff
testified
which

a

that an MRI had revealed a cyst on her kidney, for
doctor’s

appointment

had

been

scheduled

in

July.

Plaintiff was then directed to her back issues which caused
pain in the lower back that radiated down her leg and made her
feet numb. She testified that she had received ESI’s for her
back pain which were not particularly helpful. Plaintiff also
experienced fatigue, likely attributable to lupus, the chiari
malformation,
awakening,

and

migraine

caused

pain

headaches that were present upon
across

the

shoulder

blade,

and

incapacitated her for most of the day, sometimes requiring ER
treatment. Those headaches occurred once per month and lasted
all

day.

Plaintiff

was

on

an

assortment

of

prescription

medications and she was observed to use a cane for “. . .
walking the distances” that she had taken up on her own but was
to discuss with her doctor at her next follow-up visit. She had
also participated in physical therapy in the past.45
When asked to describe a typical day, Plaintiff explained
that until just a few months earlier she was capable of seeing
her grandson off to school in the mornings and assisting with
the care of her elderly parents and her disabled son on a
45

Rec. Doc. No. 15, pp. 16, Tr. pp. 34-38.

19

weekly

basis.

was

also

cooking,

cleaning,

She

capable

and

shopping.

of

doing

However,

some

of

Plaintiff

the

was

no

longer able to engage in such activities due to limitations in
standing and walking. She also

became dizzy and lightheaded

when

for

sitting

Plaintiff
walked
she

once

two

was

and

then
went

driving
to

miles,

now

and

limited

to

the

long

gym

rode

distances.

five

days

Although

per

week,

the stationary bike at home,

walking only

twenty

to

thirty

feet

before having to sit and take a break. Shopping was done by her
husband. Plaintiff estimated that she could only stand five to
ten minutes before experiencing leg pain and numbness in her
feet. She avoided climbing stairs and limited her lifting to
two to five pounds due to

difficulties with her shoulders,

the left worse than the right. Plaintiff testified that she
could

sit

for

only

15

minutes

before

getting

dizzy,

lightheaded, and having tingly fingers,

requiring her to lie

down

day,

until

it

reportedly
counsel’s

lie

subsided.
down

question,

On

two

a

to

Plaintiff

typical
three

hours.

indicated

Plaintiff
In

that

would

response

she

could

to
not

engage in the clerical work she had once performed because of
the

commute

involved,

leg

pain

from

walking

and

standing,

and lightheadedness and dizziness from sitting.46
After counsel’s questioning of Plaintiff was completed,
46

Rec. Doc. No. 15, pp. 17, Tr. pp. 38-42.

20

the

ALJ

visits

queried
to

occurred
2011.

the

on

At

record

counsel
ER

for

open

for

Plaintiff’s

headache-related

treatment

weekends

successive

counsel’s

about the frequency of

the

suggestion,
submission

during
the

of

ALJ

latter

agreed

updated

which

to

part
keep

medical

had
of
the

records,

including the results of a recent MRI.47
Plaintiff's Contentions
Plaintiff

raises

three

objections

to

the

Magistrate’s

findings. First, Plaintiff argues that the ALJ failed to apply
the

correct

legal

standard

in

concluding

that

her

chiari

malformation was not a severe impairment.48
Second, Plaintiff argues that the ALJ did not apply the
correct

legal

standard

in

assessing

her

residual

functional

capacity (“RFC”) and that his findings on the issue were not
supported by substantial evidence.49 Plaintiff alleges that the
RFC

assessment

that

was

found

by

the

ALJ

failed

to

include

limitations from all of her severe impairments, which included
lupus,

chiari

malformation,

degenerative

disc

disease,

and

chronic migraines. Third, Plaintiff argues that the ALJ failed
to

apply

the

proper

standard

credibility.50

47
48
49
50

Rec.
Rec.
Rec.
Rec.

Doc.
Doc.
Doc.
Doc.

No.
No.
No.
No.

15,
15,
15,
15,

pp.
pp.
pp.
pp.

17, Tr. pp 42-44.
17.
21.
24.

21

to

determine

her

Law and Analysis
Standard of Review
This Court’s review is limited to determining whether 1)
substantial

evidence

exists

in

the

record,

as

a

whole,

to

support the findings of the Commissioner; and 2) whether the
Commissioner applied the proper legal standards in evaluating
the evidence.

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.

2000) (citation omitted).

Substantial evidence is more than a

scintilla but less than a preponderance, and is "such relevant
evidence

as

a

reasonable

mind

might

accept

as

adequate

to

support a conclusion.” Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005) (citation omitted).
Findings

by

the

Commissioner

which

are

supported

substantial evidence are conclusive and must be affirmed.

by
42

U.S.C. §405(g); Richardson v. Perales, 402 U.S. 389 (1971). Such
findings are conclusive and must be affirmed despite alternative
conclusions which the court might also find to be substantially
supported by the evidence.
112-113 (1992).

Arkansas v. Oklahoma, 503 U.S. 91,

“The court does not reweigh the evidence in the

record, try the issues de novo, or substitute its judgment for
the

Commissioner’s,

Commissioner’s

even

decision.”

if

the

evidence

Newton,

209

22

weighs

F.3d

at

against

the

452.

The

obligation to resolve conflicts in the evidence is one for the
Commissioner, not for the courts.

Id.

To be considered disabled and thus eligible for DIB, a
plaintiff

must

substantial

show

gainful

that

she

activity

is

unable

“to

by

reason

of

engage
any

in

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 12 months.”
U.S.C. §423(d)(1)(A); Newton at 452.

42

The Commissioner uses a

five step sequential process in determining whether a claimant
is disabled within the meaning of the Act.1 Newton, 209 F.3d at
453 (citing 20 C.F.R. §404.1520).

The claimant has the burden

of proof under the first four steps of the inquiry.
F.3d at 453.

Newton, 209

If Plaintiff successfully carries this burden, the

burden shifts to the Commissioner under the fifth step to show
that the claimant is capable of performing alternative work that
1

The five-step evaluation process requires consideration of the
following:
1) Whether the claimant is not working in substantial gainful
activity;
2) Whether the claimant has a severe impairment;
3) Whether the claimant's impairment meets or equals a listed
impairment in Appendix 1 of the Regulations;
4) Whether the impairment prevents the claimant from doing past
relevant work; and
5) Whether the impairment prevents the claimant from doing any
other work.
Newton, 209 F.3d at 453 (citing 20 C.F.R. §404.1520).

23

exists in the national economy. Id.

Thereafter, the burden is

on the Plaintiff to rebut her capability to perform alternative
work. Id.
The Court “weigh[s] four elements of proof when determining
whether

there

is

substantial

evidence

of

disability:

(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) [her] age, education, and work
history.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

Analysis
A. Plaintiff argues that the ALJ failed to apply the correct
legal standard in concluding finding that her chiari
malformation was not a severe impairment.
As noted in the Magistrate’s Report and Recommendation, the
standard

that

the

Plaintiff

recites

is:

“[a]n

impairment

is

severe if it significantly limits an individual’s ability to
perform work related functions. Stone v. Heckler, 752 F.2d 1099
(5th Cir. 1985); 20 C.F.R. 404 § 1521.”51 The Magistrate relied
upon and applied this precise legal standard. The ALJ recited
similarly

that

“[a]

medically

determinable

impairment…is

‘severe’...if it significantly limits an individual’s...ability
to

51
52

do

basic

work

activities

(20

Rec. Doc. No. 15, pp. 18.
Id.

24

CFR

404.1521).”52

The

ALJ

decision also cites Stone in several places, thus relying on the
same legal standard as Plaintiff.53
With respect to the chiari malformation, the record does
not

support

a

finding

“significantly

limited”

that
in

this

her

caused

“ability

Plaintiff
to

do

to

basic

be
work

activities.” See Stone, 752 F.2d at 1099. Plaintiff was assessed
by various physicians and almost none of the symptoms point to
chiari malformation, and even if it did, the symptoms do not
support a finding that the condition impacts Plaintiff’s daily
life.

Following

the

initial

suggestion

by

a

CT

scan

that

Plaintiff might have the condition of chiari malformation as
opposed to another condition, Plaintiff was sent for further
evaluation by Dr. Caldwell and Dr. Bui.54
Neither

doctor

diagnosed

Plaintiff

with

chiari

malformation, and Dr. Bui found that her MRI was suggestive of
migraine

headaches.55

Next,

Dr.

Redillas

was

consulted

by

Plaintiff for headaches and migraines. Id. The doctor diagnosed
Plaintiff

with

episodic

migraines,

not

chiari

malformation.56

Plaintiff next was seen by Dr. Webb-Detiege who found that she
was in no pain, her headaches and backaches were improving with

53
54
55
56

Id.
Id.
Rec. Doc. No. 15, pp. 19.
Id.

25

medication,

and

her

physical

examination

was

normal,

no

discussion of chiari malformation.57
Plaintiff was again seen by Dr. Redillas and again was
diagnosed with episodic migraines, not chiari malformation. Id.
Following Dr. Redillas’ visit, Plaintiff again was seen by Dr.
Webb-Detiege and was diagnosed with migraine headaches, and yet
again not chiari malformation.58 The final discussion of chiari
malformation appears during a follow-up visit to Dr. Croll at
which time Plaintiff was essentially discharged from Dr. Croll’s
care for lack of symptoms pertaining to chiari malformation.59
Based on the above medical evidence, it is questionable
whether Plaintiff suffered from chiari malformation at any time.
However, even if Plaintiff was suffering from the symptoms of
chiari malformation, the symptoms that she experienced were not
a severe impairment that significantly limited her ability to do
work activities, such as her previous administrative position.
Consequently,

the

ALJ

and

the

Magistrate

Judge

applied

the

correct legal standard in assessing Plaintiff’s abilities.

B. Plaintiff argues that the ALJ did not apply the correct
legal
standard in assessing her residual functional
capacity (“RFC”) and that his findings on the issue were
not supported by substantial evidence.

57
58
59

Id.
Id.
Rec. Doc. No. 15, pp. 20.

26

Plaintiff

argues

that

“had

the

totality

of

all

limitations been considered...the ALJ’s assessment
been

different

and...‘would

have

significantly

of

her

would have
altered

the

opinions of the Vocational Expert and resulted in a finding of
disabled.’”60 She argues that
lupus,

chiari

malformation,

the specific medical diagnoses:
degenerative

disc

disease,

and

chromic migraines were left out of the RFC assessment that was
arrived at by the ALJ.61
First,

Plaintiff

failed

to

identify

degenerative

disc

disease and chronic migraines as disabling conditions in her
application

for

DIB

and

paperwork.62

related

Sullivan, 884 F.2d 789, 802

(finding

Cf.

Pierre

v.

that the only declared

mental impairment was “nerves” and that does not require the ALJ
to

order

further

tests

to

find

for

a

possible

disability).

Lupus and chiari malformation were listed as the two conditions
that were afflicting Plaintiff at the time that the paperwork
was filed.63
The record does not reflect severe complaints of lupus to
any physician.64 Her ability to work until 2010 was unaffected by
her

lupus

1305)(ability
60
61
62
63
64
65

diagnosis.65
to

work

Fraga
after

v.
with

Rec. Doc. No. 15, pp. 21.
Id.
Id.
Rec. Doc. No. 15, pp. 22.
Id.
Id.

27

Bowen,
a

810

F.2d

pre-existing

1296,

condition

supports a finding of no disability). The record reflects that
it was not lupus or any other disability that forced Plaintiff
to cease working, but a reduction-in-workforce.66 Based on these
facts, it would have been improper for the ALJ to refer to lupus
in the RFC assessment. Further, based on the analysis above
pertaining to chiari malformation, it also would not have been
properly included in the RFC assessment.
of

the

record,

Commissioner’s

there

decision

is

no

and

the

Based on this analysis

basis
correct

for

disturbing

legal

standard

the
was

applied.

C. Plaintiff argues that the ALJ failed to apply the proper
standard to determine her credibility.
Plaintiff again asserts that the ALJ relied on “erroneous
propositions” in stating that her headaches were mild and were
no longer associated with vomiting, nausea, and shoulder pain.67
She states that this was untrue and that more severe symptoms
were reported in March 2012.68 The Fifth Circuit in Sharlow v.
Schweiker made it clear that the ALJ must “consider a claimant’s
subjective complaints of pain and other limitations.”69 665 F.2d
645, 648 (5th Cir. 1981).

66
67
68
69

Id.
Rec. Doc. No. 15, pp. 24.
Id.
Id.

28

However, the ALJ may determine the “debilitating nature” of
the symptoms within their own discretion, and the burden is on
Plaintiff to provide objective medial evidence of conditions in
order for relief to be granted. Jones v. Bowen, 829 F.2d 524,
527 (5th Cir. 1987); Selders v. Sullivan, 914 F.2d 614, 618 (5th
Cir.

1990).

The

“debilitating
medical

ALJ

nature”

evidence

credibility

must
of

then

the

provided

determinations

weigh

by

claims

against

symptoms

the

the

Plaintiff,

pertaining

of

objective

including

to

the

the

making

claimant,

the

doctors, and witnesses. Chapparo v. Brown, 815 F.2d 1008, 1010
(5th Cir. 1997); Carrier v. Sullican, 944 F.2d 243, 247 (5th
Cir. 1991).
Based
mild

and

associated

on
the

Plaintiff’s
other

with

own

reported

Plaintiff

or

admissions,
symptoms
were

the

were

less

headaches

either

severe.

no

This

were

longer
is

the

information that the ALJ used when making its decision. “The ALJ
was thus correct in concluding that the subjective complaints
that Plaintiff testified to at the administrative hearing were
not supported by the objective evidence of record as required.”
Villa, 895 F.2d at 1024. Several statements by Plaintiff called
into

question

her

credibility,

including

that

she

stopped

working because of a reduction-in-workforce, and some suspicious
behavior at the administrative hearing.70 Based on the record, it

70

Rec. Doc. No. 15, pp. 26.

29

is

proper

that

the

ALJ

found

that

Plaintiff’s

“subjective

complaints were not credible to the extent alleged.” Id.
For

the

reasons

enumerated

above,

the

Court

GRANTS

the

Commissioner’s motion for summary judgment and DENIES Nelson’s
motion

for

summary

judgment.

Substantial

record

evidence

and

pertinent law support the administrative decisions at issue.

New Orleans, Louisiana, this 10th day of March, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

30