Lemaire v. Social Security Administration

Filing 15

MEMORANDUM RULING re 1 Complaint filed by Libby Lane Lemaire. Considering theadministrative record, the parties' briefs, and the applicable law, the commissioner's decision is AFFIRMED. Signed by Magistrate Judge Patrick J Hanna on 10/5/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LIBBY LANE LEMAIRE

CIVIL ACTION NO. 6:15-cv-02729

VERSUS

MAGISTRATE JUDGE HANNA

U.S. COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION

BY CONSENT OF THE PARTIES

MEMORANDUM RULING
Before the Court is an appeal of the Commissioner’s finding of non-disability.
In 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
(Rec. Doc. 7-1), and this matter was referred to the undersigned Magistrate Judge for
all proceedings, including the entry of judgment (Rec. Doc. 8). Considering the
administrative record, the parties’ briefs, and the applicable law, the Commissioner’s
decision is AFFIRMED.
ADMINISTRATIVE PROCEEDINGS
The claimant, Libby Lane Lemaire, fully exhausted her administrative remedies
before filing this action. She filed an application for disability insurance benefits,
alleging disability beginning on November 27, 2012.1 Her application was denied.2
1

Rec. Doc. 9-1 at 117, 132.

2

Rec. Doc. 9-1 at 64.

She requested a hearing, which was held on May 20, 2014 before Administrative Law
Judge Lawrence T. Ragona.3 The ALJ issued a decision on August 4, 2014,4
concluding that the claimant was not disabled between the alleged onset date and the
date of the decision, within the meaning of the Social Security Act. The claimant
sought review of that decision, but the Appeals Council denied her request.5
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). The claimant then filed
this action seeking judicial review of the Commissioner’s decision.
SUMMARY

OF

PERTINENT FACTS

The claimant was born on February 24, 1975.6 At the time of the ALJ’s
decision, she was thirty-eight years old. She has an eleventh grade education and no
subsequent vocational training.7 She has past relevant work experience doing fire
watch for a construction company, and as a cook and food service worker in a
hospital and in a nursing home.8 Mrs. Lemaire alleges that she has been disabled
3

The hearing transcript is found at Rec. Doc. 9-1 at 31-54.

4

Rec. Doc. 9-1 at 16-24.

5

Rec. Doc. 9-1 at 5.

6

Rec. Doc. 9-1 at 33, 117, 132.

7

Rec. Doc. 9-1 at 35, 137.

8

Rec. Doc. 9-1 at 137, 155.

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since November 27, 2012 due to neck and shoulder conditions, carpal tunnel
syndrome, diabetes, hypertension, and high cholesterol.9 Her alleged disability onset
date coincides with the date she last worked.10
Mrs. Lemaire underwent a surgical procedure for ulnar transposition and carpal
tunnel release on her right wrist in 2010.11 Pain recurred in her right hand, and she
sought treatment with Dr. Gabriel Tender, a neurosurgeon at the LSU Health Sciences
Center in New Orleans on February 22, 2012.12 Dr. Tender found that Tinel’s sign
was present on the right, and he recommended EMG testing. According to Dr.
Tender, the EMG study showed muscular problems at the right wrist; therefore, he
ordered an MRI of her wrist and noted that revision of the carpal tunnel release was
likely necessary.13 Although the MRI did not show any type of compression at the
wrist, Dr. Tender advised moving forward with the surgery.14 No report on the
surgery itself is contained in the record. However, Mrs. Lemaire returned to see Dr.

9

Rec. Doc. 9-1 at 136.

10

Rec. Doc. 131, 132, 136.

11

According to the history she gave Dr. Robert L. Morrow, Jr. on September 17, 2013,
that surgery was performed in November 2010. Rec. Doc. 9-1 at 466.
12

Rec. Doc. 9-1 at 199-201.

13

Rec. Doc. 9-1 at 198.

14

Rec. Doc. 9-1 at 197.

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Tender on July 18, 2012, which was after the surgery, and she reported that she was
pain free despite a surgical complication that resulted in a portion of the surgical
incision rupturing.15 When Mrs. Lemaire returned to see Dr. Tender on August 15,
2012, he noted that she was “doing great” with no residual pain and a well-healed
wound, and he released her to light duty work.16 The record contains no limitations
or restrictions placed on Mrs. Lemaire’s activities by Dr. Tender.
On September 5, 2012, Mrs. Lemaire visited the family medicine clinic at
University Medical Center (“UMC”) in Lafayette, Louisiana, complaining of left
upper arm pain that had lasted for three weeks and was unrelated to any particular
event. She was diagnosed with left shoulder strain and given a Kenalog injection in
the shoulder. She was also diagnosed with hypertension (for which Lisinopril was
prescribed) and uncontrolled diabetes (for which Novolog was prescribed). X-rays
of her left shoulder, taken two days later, were negative.17
Mrs. Lemaire returned to UMC’s family medicine center on October 2, 2012.18
She reported that she was still having pain in her upper left arm but getting some

15

Rec. Doc. 9-1 at 194.

16

Rec. Doc. 9-1 at 193.

17

Rec. Doc. 9-1 at 212.

18

Rec. Doc. 9-1 at 213-215.

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relief with chiropractic treatments. Her diabetes was described as uncontrolled, her
hypertension was described as not at goal, her Linisopril dosage was increased, and
she was diagnosed with tendinitis in her left shoulder. She was referred to physical
therapy and advised to avoid chiropractic treatments.
On October 30, 2012,19 an MRI of the claimant’s left shoulder showed mild
degenerative arthritis at the left glenohumeral joint and mild tendinosis involving the
infraspinatus tendon. A cervical MRI taken the same day20 showed significant central
canal stenosis at C4-5 through C6-7, moderate right neural foraminal stenosis at C5-6,
and more severe left neural foraminal stenosis at C6-7.
In December 2012, Mrs. Lemaire began treating with Dr. Thomas J.
Montgomery.21 On December 18, 2012, he performed a left shoulder manipulation
under general anesthesia due to adhesive capsulitis.
The next day,22 the claimant saw neurosurgeon Dr. Luiz DeAraujo. Dr.
DeAraujo reported to Dr. Montgomery that Ms. Lemaire had previously undergone

19

Rec. Doc. 9-1 at 238.

20

Rec. Doc. 9-1 at 237.

21

Rec. Doc. 9-1 at 253, 256-260, 289-293.

22

Rec. Doc. 9-1 at 227-228.

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two carpal tunnel releases on the right side and one on the left side23 as well as a right
ulnar nerve decompression, that recent studies showed persistent impairment of the
median nerve bilaterally, and that a recent MRI showed a cervical disc protrusion at
C6-7 with impingement to the neuroforamen at that level as well as impingement of
the nerve root at C5-6 on the right side secondary to spondylitic changes with
decreased diameter of the spinal canal. His examination of the claimant showed
muscle spasms, a decreased range of motion in the neck, and a positive Spurling
maneuver on the left side. In Dr. DeAraujo’s opinion, Mrs. Lemaire’s symptoms
were secondary to the lesion at C6-7, and he recommended a cervical epidural steroid
injection to be followed by physical therapy, along with anti-inflammatory medication
and muscle relaxants.
The claimant returned to Dr. Montgomery on December 26, 2012,24 and
reported that she was doing well following the left shoulder manipulation. Dr.
Montgomery released her to regular duty work. The record contains no limitations
or restrictions placed on Mrs. Lemaire’s activities by Dr. Montgomery following the
shoulder surgery.

23

There is no evidence in the record corroborating a carpal tunnel release on the left
before this date.
24

Rec. Doc. 9-1 at 261-262.

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Mrs. Lemaire underwent the epidural steroid injection recommended by Dr.
DeAraujo, but she did not have significant improvement; therefore, Dr. DeAraujo
recommended surgery.25
Because of an abnormal EKG, Mrs. Lemaire saw a cardiologist, Dr. Raghotham
Patlola, on January 16, 2013, to obtain clearance before her neck surgery.26 She also
followed up with Dr. Patlola on February 28, 2013,27 and March 5, 2013.28
Dr. DeAraujo performed an anterior cervical microdiscectomy and fusion with
instrumentation at C6-7 on January 22, 2013.29
On January 30, 2013, Mrs. Lemaire returned to see Dr. Montgomery.30 She
was six weeks post-op on the left shoulder manipulation. Dr. Montgomery noted that
her range of motion was improving, she was doing well, and she had almost a full
range of motion in her shoulder. Due to the recent neck surgery, however, Dr.
DeAraujo had her on no work status for the next three months.

25

Rec. Doc. 9-1 at 226.

26

Rec. Doc. 9-1 at 428-442.

27

Rec. Doc. 9-1 at 424-427.

28

Rec. Doc. 9-1 at 405-407.

29

Rec. Doc. 9-1 at 229-230.

30

Rec. Doc. 9-1 at 264-265.

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On February 14, 2013, the claimant had a new-patient visit with Dr. Kerry
Schexnaider, an internist.31 His diagnoses were diabetes and hypertension. When
Mrs. Lemaire returned to Dr. Schexnaider on March 1, 2013,32 he added proteinuria
and pure hypercholesterolemia to her diagnoses, noting that her diabetes,
hypercholesterolemia, and hypertension were not at goal.
At Dr. DeAraujo’s request, cervical spine x-rays were taken on March 13,
2013.33 These showed satisfactory alignment of the plate and screws placed during
surgery, no evidence of prevertebral soft tissue swelling, fracture, or subluxation, and
no instability with flexion and extension positioning. A CT scan of Mrs. Lemaire’s
cervical spine, obtained on April 4, 2013, showed a stable lower cervical fusion with
spondylosis but no evidence of acute fracture or dislocation.34
On April 15, 2013, Mrs. Lemaire telephoned Dr. Montgomery’s office asking
for more pain medication for her shoulder, and a prescription was called in to the
pharmacy.35 On April 22, 2013,36 she visited Dr. Montgomery’s office, complaining
31

Rec. Doc. 9-1 at 297-300.

32

Rec. Doc. 9-1 at 301-304.

33

Rec. Doc. 9-1 at 234.

34

Rec. Doc. 9-1 at 233.

35

Rec. Doc. 9-1 at 267.

36

Rec. Doc. 9-1 at 268-270.

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that she had recently fallen while holding a door open with her right hand, injuring
her right shoulder. She reported popping in the shoulder, pain in both upper
extremities, an inability to move her arms back, and an inability to lift her arms above
her head. She also complained of bilateral numbness to the tips of her fingers and
decreased strength due to pain. She told Dr. Montgomery that she had never gotten
back to 100% following the left shoulder manipulation and had not yet returned to
work following neck surgery. Dr. Montgomery’s examination showed no swelling,
no spasm, no atrophy, full forward flexion, and no objective signs of injury to either
shoulder but he detected mild impingement of the right shoulder. He found that both
shoulders were neurovascularly intact. Clavicle x-rays showed mild AC joint
arthritis. Dr. Montgomery’s impressions were residual arthrofibrosis and right
shoulder bursitis. Dr. Montgomery injected both shoulders with lidocaine, and he
prescribed Norco for pain. The claimant called Dr. Montgomery’s office on May 2,
2013, complaining that the injections did not work and she was in a lot of pain.37 Her
pain medication was refilled.38 When the claimant called five days later, seeking

37

Rec. Doc. 9-1 at 271.

38

Rec. Doc. 9-1 at 272.

-9-

more pain medication, Dr. Montgomery advised that no refills would be given and
repeat MRIs would be necessary if she was still having problems.39
MRIs of the right and left shoulder were performed on May 13, 2013.40 A
ganglion cyst within the subscapularis recess was detected. There was no evidence
of a rotator cuff tear on the right shoulder, but there was mild supraspinatus and
infraspinatus tendinosis. The MRI detected a small undersurface tear involving the
distal supraspinatus of the left shoulder as well as fluid within the subacromial and
subdeltoid bursa relating to mild bursitis.
Mrs. Lemaire saw Dr. Montgomery again on May 15, 2013.41 His impression
was rotator cuff tendinitis. He stated that “I really do not have anything to offer her.
I would not recommend any surgical treatment. I think her problems are more of a
chronic nature.” He recommended that she see a pain management specialist.
On May 30, 2013, Mrs. Lemaire saw Dr. Malcolm J. Stubbs, an orthopedic
surgeon,42 complaining of bilateral shoulder pain, left greater than right. She rated
her pain as eight on a scale of one to ten. On examination, Dr. Stubbs found positive

39

Rec. Doc. 9-1 at 273.

40

Rec. Doc. 9-1 at 231-232.

41

Rec. Doc. 9-1 at 386.

42

Rec. Doc. 9-1 at 364-366.

-10-

signs of impingement in both shoulders. His impressions were left shoulder partial
rotator cuff tear with impingement and acromioclavicular arthritis and adhesive
capsulitis, and right shoulder adhesive capsulitis. He injected her right shoulder with
a lidocaine and Solu-Medrol. For the left shoulder, he recommended arthroscopy
with rotator cuff repair, decompression, distal clavicle excision, and possible capsule
release. The left shoulder surgery was performed on June 18, 2013.43
Mrs. Lemaire saw Dr. Stubbs again on June 24, 2013.44 He noted that she was
“doing fairly well” and that “her pain is under control.” When she saw Dr. Stubbs on
July 8, 2013,45 she was still having some discomfort. On August 5, 2013,46 Dr.
Stubbs noted that she was “making improvement” and that her “pain has decreased.”
On July 1, 2013, the claimant again saw Dr. DeAraujo.47 He noted that she was
doing well, that she had undergone left shoulder surgery by Dr. Stubbs, and that her
cervical spine was asymptomatic. She had a full range of motion in her neck and no
muscle spasms. He anticipated just one more follow-up visit.

43

Rec. Doc. 9-1 at 370-373.

44

Rec. Doc. 9-1 at 374.

45

Rec. Doc. 9-1 at 392.

46

Rec. Doc. 9-1 at 391.

47

Rec. Doc. 9-1 at 505.

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On September 4, 2013, Mrs. Lemaire visited Dr. DeAraujo.48 He noted that she
was doing very well, was free of radicular pain, and was recovering well from the
surgery on her left shoulder. He found that she had a full range of motion in her neck
and normal tendon reflexes in both arms with no significant muscle spasm. He
released her from his care. The record contains no limitations or restrictions placed
on Mrs. Lemaire’s activities by Dr. DeAraujo in connection with her neck surgery.
Mrs. Lemaire returned to see Dr. Stubbs on September 5, 2013.49 Dr. Stubbs
noted that she was no longer taking pain medication and her activity level had
increased. However, she complained of right hand numbness and tingling on both the
left and right. Dr. Stubbs stated that “[i]t sounds as though she has recurrent carpal
tunnel syndrome on the right. . . [and] similar symptoms on the left.” He ordered a
nerve conduction study.
The next day, on September 6, 2013, Mrs. Lemaire was examined by Dr. Julana
Monti at the request of Disability Determination Services.50 Mrs. Lemaire reported
that she had worked until November 2012 as a dietary aide and cook but was having
trouble doing the work due to her neck, left shoulder, and hands. She reported the

48

Rec. Doc. 9-1 at 504.

49

Rec. Doc. 9-1 at 389-390.

50

Rec. Doc. 9-1 at 377-381.

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cervical surgery of January 2013, and stated that if she sits in one place too long, her
neck and legs begin to hurt. She also stated that she cannot lift things due to neck
pain. Mrs. Lemaire also told Dr. Monti that she had undergone two carpal tunnel
surgeries on her right hand but was continuing to have weakness, pain, and numbness
in her hands. She reported that her doctor told her that she needs to have surgery on
both hands. Mrs. Lemaire also reported arthritis in her shoulders. She told Dr. Monti
about her shoulder surgery, and stated that she experienced a rotator cuff tear in the
left shoulder during therapy following surgery, which was also surgically repaired.
She also reported that she has insulin-dependent diabetes mellitus.
Upon examination, Dr. Monti found positive Tinel’s sign bilaterally, a
decreased range of motion in the left shoulder, and painful strength testing around the
left shoulder. Grip strength in both hands was 4/5, and her dexterity was intact.
Dr. Monti stated that “[b]ased on the claimant given history, available medical
records, and physical exam, I believe the claimant should be able to sit, stand and
walk for 8 hours per workday without an assistive device, and lift or carry objects
weighing up to 5 pounds. There are no restrictions on the claimant’s ability to read,
but would be able to drive in 2 hour increments due to shoulder pain and carpal
tunnel syndrome, and would have difficulty to perform fine motor tasks for longer
than 2 hour increments due to carpal tunnel syndrome.”
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On September 17, 2013, Mrs. Lemaire had an initial visit with Dr. Robert L.
Morrow. Dr. Morrow noted that she had been referred to him by Dr. DeAraujo
because of ongoing numbness and tingling in both hands. Upon examination, Dr.
Morrow found that she had a full range of motion in both wrists and could form fists
with both hands. The temperature of both hands was the same. There was no
substantial atrophy of the muscles of either hand. Strength in both hands was 5/5.
She had a positive Tinel’s sign of the right median nerve and was tender to palpation
over the prior surgical incision. She had some irritation of the ulnar nerve at the right
wrist but no referral to the ring or small fingers. She also had decreased light touch
sensory perception in the right median nerve distribution. The left median nerve
Tinel’s test was slightly positive but left ulnar nerve Tinel’s test was negative. Dr.
Morrow’s impression was ongoing right carpal tunnel symptomatology and left carpal
tunnel syndrome. He found the claimant to be a candidate for further decompression
of her right median nerve. He recommended nerve conduction studies and an
ultrasound of the nerves.
On October 4, 2013,51 Mrs. Lemaire was seen by ophthalmologist Dr. Kerry N.
Brown on referral from Dr. Schexnaider. He found an acute hordeolum (stye) on the
left lower eyelid, proliferative diabetic retinopathy in both eyes, no macular edema
51

Rec. Doc. 9-1 at 492-497.

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in both eyes, and cataracts in both eyes that he described as “not significant.” The
claimant followed up with Dr. Brown on December 18, 2013.52
On October 8, 2013, Dr. James N. Domingue, a neurologist, conducted EMG
and ultrasound testing on the claimant.53 That same day, the claimant returned to Dr.
Morrow,54 who reported that Dr. Domingue’s testing showed abnormalities in the
nerve conduction study indicative of bilateral lesions of the median nerves at the
wrists as well as of the ulnar nerves at the elbows. Dr. Domingue suspected that the
EMG abnormalities were residue of the C6 or C7 radiculopathy that was treated
surgically in January 2013. The ultrasound of the right median nerve showed slight
enlargement of the median nerve at the wrist and appeared edematous. Dr. Morrow
again recommended surgery. Mrs. Lemaire visited Dr. Morrow again on October 15,
2013,55 and the surgical recommendation was discussed.
On October 16, 2013,56 Dr. Morrow performed decompression and external
neurolysis of the right medial nerve and distal forearm, wrist, and hand with wrapping
of the nerve. The operative report indicates that there was extensive 5.5 cm long
52

Rec. Doc. 9-1 at 488-491.

53

Rec. Doc. 9-1 at 444-450.

54

Rec. Doc. 9-1 at 462-464.

55

Rec. Doc. 9-1 at 458-460.

56

Rec. Doc. 9-1 at 482-483.

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scarring of the median nerve, which was removed. Dr. Morrow’s post-surgical
diagnoses were recurrent right carpal tunnel syndrome, secondary to extensive
scarring of the median nerve in the distal forearm, wrist, and hand, and left carpal
tunnel syndrome.
The claimant followed up with Dr. Morrow on October 29, 2013.57 She was
having some tingling sensations, which were improving, and she was able to flex and
extend her fingers. Dr. Morrow advised her to perform therapeutic movements of the
wrist, and he refilled her pain medication. The record contains no limitations or
restrictions placed on Mrs. Lemaire’s activities by Dr. Morrow in connection with the
carpal tunnel release surgery that he performed.
On November 27, 2013,58 the claimant underwent testing at Our Lady of
Lourdes Regional Medical Center ordered by Dr. DeAraujo.
On December 5, 2013, Dr. DeAraujo performed a left carpal tunnel release.59
Mrs. Lemaire followed up with Dr. DeAraujo on December 16 and December 23,
2016. At both visits, he noted that she was progressing well despite a small area of

57

Rec. Doc. 9-1 at 455-457.

58

Rec. Doc. 9-1 at 471-479.

59

Rec. Doc. 9-1 at 469-470.

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dehiscence of the incision.60 On December 30, 2013 and again on January 6, 2013,
Dr. DeAraujo noted that the wound was healing well, and he advised the claimant to
do range of motion exercises.61 The record contains no limitations or restrictions
placed on Mrs. Lemaire’s activities by Dr. DeAraujo in connection with the left
carpal tunnel release surgery.
On March 17, 2014,62 Mrs. Lemaire had a CT of the cervical spine, which
showed a prior anterior fusion at C6-7, with central canal stenosis and mild bilateral
neural foraminal stenosis noted at that level but no acute fracture or subluxation.
On May 2, 2014,63 Mrs. Lemaire visited the internal medicine clinic at UMC,
complaining of neck pain and requesting refills of her medication. At that time, she
was prescribed Coreg, Hydrochlorothiazide, Insulin, Lantus, Lisinopril, Norco, Soma,
Tramadol, and Xanax.
At the hearing, on May 20, 2014, Mrs. Lemaire testified that she has not
regained full strength in her arms, that her hands sometimes get numb and burn, and
that she gets dizzy when she bends over. She claimed to have fallen down three times

60

Rec. Doc. 9-1 a 502.

61

Rec. Doc. 9-1 at 501.

62

Rec. Doc. 9-1 at 520.

63

Rec. Doc. 9-1 at 511-513.

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in the previous year because of dizziness. She also stated that she cannot lift her arms
up and cannot hold things in her hands without dropping them. Mrs. Lemaire stated
that she had surgery in both eyes in November 2013 due to diabetic retinopathy, but
there is no evidence in the record corroborating that contention. She testified that she
can only walk about half a block before her legs start hurting and go numb. She
claims that she does no housework and no gardening and shops for groceries about
once a month. When she goes to the grocery store, she is pushed in a wheelchair.
She occasionally uses the computer. Mrs. Lemaire stated that her medications make
her sleepy, dizzy, and nauseated. She said she takes about three naps per day, for
thirty minutes to an hour each. She stated that she does not sleep well at night
because her neck and arms hurt. She stated that when she drives, she only goes about
four blocks and does not drive alone because her hands go numb. She said that she
sometimes reads but cannot hold a book up. She testified that she can lift only about
five pounds, cannot dress and bathe herself because she cannot lift up her arms long
enough, and wears a wig because she cannot brush her hair. She does not cook. She
said, “I can’t even stir eggs with a spoon without my arms hurting me.” She testified
that she has not sought pain management because she has no insurance and cannot
afford it.

-18-

At the time of the hearing, Ms. Lemaire was taking Soma (a muscle relaxer),
Xanax (to help her sleep), HLTZ and Coreg (for high blood pressure), Metformin,
Humulin, and Lantus (for diabetes), and Provastatin (for high cholesterol).
ANALYSIS
A.

THE 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.64 “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.”65 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.’”66

64

Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d
172, 173 (5 Cir. 1995).
th

65

Villa v. Sullivan, 895 F.2d at 1021-22 (quoting Hames v. Heckler, 707 F.2d 162, 164
(5 Cir. 1983)).
th

66

Hames v. Heckler, 707 F.2d at 164 (quoting Hemphill v. Weinberger, 483 F.2d 1137.
1139 (5 Cir. 1973), and Payne v. Weinberger, 480 F.2d 1006, 1007 (5th Cir. 1973)).
th

-19-

If the Commissioner's findings are supported by substantial evidence, then they
are conclusive and must be affirmed.67 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from reweighing the
evidence or substituting its judgment for that of the Commissioner.68 Conflicts in the
evidence and credibility assessments are for the Commissioner to resolve, not the
courts.69 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.70
B.

ENTITLEMENT

TO

BENEFITS

The Disability Insurance Benefit program provides income to individuals who
are forced into involuntary, premature retirement, provided they are both insured and
disabled, regardless of indigence.71
67

42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173; Carey v. Apfel, 230 F.3d 131,
135 (5 Cir. 2000).
th

68

Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

69

Martinez v. Chater, 64 F.3d at 174.

70

Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991); Martinez v. Chater, 64 F.3d at

71

See 42 U.S.C. § 423(a).

174.

-20-

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.”72 A
claimant is 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 that 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.73
C.

THE EVALUATION PROCESS

AND THE

BURDEN

OF

PROOF

The Commissioner uses a sequential five-step inquiry to determine whether a
claimant is disabled. This process requires the ALJ to determine whether a 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

72

42 U.S.C. § 1382c(a)(3)(A).

73

42 U.S.C. § 1382c(a)(3)(B).

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able to do the kind of work he did in the past; and (5) can perform any other work.74
“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.”75
Before going from step three to step four, the Commissioner assesses the
claimant's residual functional capacity76 by determining the most the claimant can still
do despite his physical and mental limitations based on all relevant evidence in the
record.77 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.78
The claimant bears the burden of proof on the first four steps.79 At the fifth
step, however, the Commissioner bears the burden of showing that the claimant can

74

20 C.F.R. § 404.1520; see, e.g., Wren v. Sullivan, 925 F.2d at 125; Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002);
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
75

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. den. 514 U.S. 1120
(1995) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)). See, also, 20 C.F.R. §
404.1520(a)(4).
76

20 C.F.R. § 404.1520(a)(4).

77

20 C.F.R. § 404.1545(a)(1).

78

20 C.F.R. § 404.1520(e).

79

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.

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perform other substantial work in the national economy.80 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by
expert vocational testimony, or by other similar evidence.81 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to
rebut this finding.82
D.

THE ALJ’S FINDINGS

AND

CONCLUSIONS

In this case, the ALJ determined, at step one, that the claimant has not engaged
in substantial gainful activity since November 27, 2012.83 This finding is supported
by the evidence in the record.
At step two, the ALJ found that the claimant has the following severe
impairments: a cervical spine disorder (history of cervical spine fusion surgery);
bilateral carpal tunnel syndrome; left shoulder partial rotator cuff tear with
impingement, arthritis, and adhesive capsulitis (status post rotator cuff repair);
diabetes; and hypertension.84 This finding is supported by evidence in the record.
80

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
81

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

82

Perez v. Barnhart, 415 F.3d at 461; Masterson v. Barnhart, 309 F.3d at 272; Newton
v. Apfel, 209 F.3d at 453.
83

Rec. Doc. 9-1 at 18.

84

Rec. Doc. 9-1 at 18.

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At step three, the ALJ found that the claimant has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment.85 The claimant does not challenge this finding.
The ALJ found that the claimant has the residual functional capacity to perform
light work, except that she can do no overhead work and she can do frequent but not
constant handling and fingering.86 The claimant challenges this finding.
At step four, the ALJ found that the claimant is capable of performing her past
relevant work as a firewatcher and as a fast food worker.87 The claimant challenges
this finding.
Having found that the claimant can perform her past relevant work, the ALJ did
not proceed to step five of the sequential analysis.88 The ALJ found that the claimant
was not disabled from November 27, 2012 (the alleged disability onset date) through
August 4, 2014 (the date of the decision) because she can perform her past relevant
work.89 The claimant challenges this finding.

85

Rec. Doc. 9-1 at 18.

86

Rec. Doc. 9-1 at 19.

87

Rec. Doc. 9-1 at 25.

88

Rec. Doc. 9-1 at 24.

89

Rec. Doc. 9-1 at 24.

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E.

THE CLAIMANT’S ALLEGATIONS

OF

ERROR

The claimant argues that the ALJ erred (1) because he improperly evaluated the
medical evidence; and (2) because he improperly evaluated the claimant’s residual
functional capacity.
F.

THE ALJ’S
EVALUATION

EVALUATION OF THE MEDICAL EVIDENCE AND
OF THE CLAIMANT’S RESIDUAL FUNCTIONAL CAPACITY

The claimant argues that the ALJ erred in failing to properly evaluate the
medical evidence in the record and erred in evaluating the claimant’s residual
functional capacity. These arguments are so closely related that the claimant did not
brief them separately. Accordingly, this Court will analyze the two issues together.
The claimant argues that the ALJ failed to properly weigh the medical
opinions, resulting in a residual functional capacity evaluation that is not supported
by substantial evidence in the record. More particularly, the claimant argues that the
ALJ erred in rejecting Dr. Monti’s opinion regarding the claimant’s ability to engage
in fine manipulation or fingering. Dr. Monti stated, in her report, that the claimant
is capable of sitting, standing, and walking for eight hours per work day without an
assistive device, that she can lift or carry objects weighing up to five pounds, that
there are no restrictions on her ability to read, that she would be able to drive for twohour increments due to her shoulder pain and carpal tunnel syndrome, and that she

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would have difficulty in performing fine motor tasks for longer than two-hour
increments due to carpal tunnel syndrome.
The Social Security regulations and rulings explain how medical opinions are
to be weighed.90 Generally, the ALJ must evaluate all of the evidence in the case and
determine the extent to which medical source opinions are supported by the record.
Furthermore, more weight will usually be given to the opinion of a source who
examined the claimant than to the opinions of a source who did not examine the
claimant.91 In this case, however, the ALJ gave “great weight” to the opinions of
treating physician Dr. Stubbs (who performed left shoulder surgery on June 18,
2013), gave “great weight” to the opinions of the agency medical consultant Dr.
Timothy Honigman (who did not examine the claimant), and gave only “some
weight” to the opinions of Dr. Monti (the consultative physician who examined the
claimant). The claimant argues that Dr. Monti’s opinions should have been given
more weight than those of Dr. Honigman, especially with regard to the claimant’s
ability to use her hands in fine manipulation or fingering.
None of the claimant’s treating physicians opined as to the frequency with
which Mrs. Lemaire could perform gross or fine manipulation of her hands and

90

20 C.F.R. § 404.1527(c), § 416.927(c), SSR 96-2p, SSR 96-5p.

91

20 C.F.R. § 404.1527(c)(1).

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fingers. However, Dr. Honigman’s opinions are based solely on other doctors’
medical records, while Dr. Monti’s opinion are based, at least in part, on her own
examination of the claimant.
The ALJ expressly found that there was “no objective evidence to support the
lifting and driving restrictions” imposed by Dr. Monti. Dr. Monti stated that her
driving and lifting restrictions were based on the history given by the claimant, the
available medical records, and her physical examination of the claimant. But she did
not state an objective basis for finding that the claimant should be limited to lifting
no more than five pounds, and no such restrictions were imposed by any of the
claimant’s treating physicians at any time. Dr. Monti explained that her restriction
on driving for more than two hours at a time was based on the claimant’s complaints
of shoulder pain and on her carpal tunnel syndrome, but Dr. Monti did not explain the
basis for the five-pound lifting restriction.
The claimant suggests that she continued to have central canal and bilateral
foraminal stenosis at C6-7 following surgery as well as central canal stenosis at C4-5
and C5-6, and she attempts to link this to Dr. Monti’s lifting restriction. But the
surgeon who treated her cervical spine did not impose a lifting restriction and Dr.
Monti did not address these conditions in analyzing the claimant’s lifting ability.

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Therefore, this Court finds that the ALJ erred in rejecting the driving restriction but
did not err in rejecting the lifting restriction imposed by Dr. Monti.
Although Dr. Monti opined that the claimant’s fine manipulation ability was
limited to two-hour increments, the ALJ found that the claimant was capable of
frequent handling or fingering. In reaching that conclusion, the ALJ relied upon Dr.
Honigman’s opinion that the claimant was capable of unlimited gross and fine
manipulation combined with then-existing diagnoses of carpal tunnel syndrome in
both hands. The claimant argues that this was error because Dr. Monti had an
objective basis for her opinion, including a finding of decreased grip strength and a
positive Tinel’s sign. The claimant is correct that there were objective bases for Dr.
Monti’s opinion. But the claimant is incorrect in concluding that the ALJ’s error in
failing to give great weight to Dr. Monti’s opinion requires reversal of the ALJ’s
finding that the claimant is not disabled.
Dr. Monti did not, as the claimant suggests, find that the claimant is limited to
fine manipulation or fingering for only two hours per day. Her finding was that Mrs.
Lemaire should limit fingering to two hours at a time; however, Dr. Monti did not
explain how much time should elapse between the two hour periods. The ALJ found
that the claimant could perform fine manipulation frequently. Since the word
“frequent” is defined in the Social Security regulations to mean one-third to two-28-

thirds of the time, the ALJ’s finding was that the claimant can perform fine
manipulation for 2.6 to 5.33 hours out of the work day. That finding is not wholly
inconsistent with Dr. Monti’s opinion that the claimant’s fine manipulation should
be limited to two-hour increments. Furthermore, even if Dr. Monti’s opinion was
interpreted to mean that the claimant was limited to fine manipulation during no more
than two hours out of an eight-hour work day, the claimant would not be disqualified
from performing any and all work.
“Although the ALJ may weigh competing medical opinions about. . .
limitations and use objective medical evidence to support its determination that one
opinion is better founded than another, neither the ALJ nor the court is free to
substitute its own opinion.”92 The claimant argues that the ALJ characterized the
medical evidence to suit his residual functional assessment, pointing out the ALJ’s
alleged use of the word “minor” to describe the stenosis identified in the March 17,
2014 CT scan and the ALJ’s omission of any reference to alleged nerve damage in
the claimant’s right hand. This Court finds, however, that the ALJ did not substitute
his own opinion for that of the medical experts. This Court was unable to locate the
ALJ’s description of the stenosis as minor, and there is no indication in the record of

92

Fabre v. Astrue, No. 13-00076-BAJ-RLB, 2014 WL 4386424, at *6 n. 6 (M.D. La.

Sept. 4, 2014).

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continued nerve damage following the two most recent carpal tunnel release
surgeries.

Neither Dr. DeAraujo nor Dr. Morrow placed any restrictions or

limitations on the claimant’s use of her hands or arms following those operations.
The ALJ’s finding with regard to the restrictions on the claimant’s ability to drive,
lift, and perform fine manipulation was a reasonable finding that is supported by
substantial evidence in the record. In particular, the record indicates that, after Dr.
Monti and Dr. Honigman rendered their opinions, the claimant underwent two
successful carpal tunnel surgeries, one on each hand, and her treating physicians did
not place any restrictions on her – with regard to driving, lifting, gross manipulation,
or fine manipulation. The ALJ acknowledged the claimant’s continued complaints
of numbness and tingling that she reported to Dr. Morrow in October 2013 but also
noted that, after the surgery, these symptoms were improving and she was able to
extend and flex her fingers. There is nothing in the records from Dr. Morrow and Dr.
DeAraujo indicating any limitation or restriction on the use of her hands following
the two most recent carpal tunnel release surgeries.
Although the ALJ should have given great weight to Dr. Monti’s opinions,
“[p]rocedural perfection in administrative proceedings is not required.”93 In this case,

93

Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).

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the ALJ’s error in weighing the medical opinions did not affect the claimant’s
substantive rights.
The responsibility for determining a claimant's residual functional capacity
belongs to the ALJ.94 In making a finding in that regard, the ALJ must consider all
of the evidence in the record, evaluate the medical opinions in light of other
information contained in the record, and determine the plaintiff's ability despite any
physical and mental limitations.95 This Court finds that the ALJ applied the proper
legal principles in evaluating the claimant’s residual functional capacity and reached
a conclusion that is supported by substantial evidence in the record. Accordingly, this
Court finds that the ALJ’s ruling should be affirmed.
CONCLUSION
This Court finds that, although the ALJ erred in failing to give great weight to
Dr. Monti’s opinions, the conclusions reached by the ALJ – particularly with regard
to the claimant’s residual functional capacity – are supported by substantial evidence
in the record, and the claimant’s substantive rights were not affected. Accordingly,
IT IS ORDERED that the Commissioner’s decision is AFFIRMED, and this
action is dismissed with prejudice.

94

Ripley v. Chater, 67 F.3d at 557.

95

Martinez v. Chater, 64 F.3d at 176.

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Signed at Lafayette, Louisiana, on this 5th day of October 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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