The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
SHEMAN REDD BERNARD CIVIL ACTION NO. 6:20-cv-01419
VERSUS JUDGE JUNEAU
COMMISSIONER OF THE SOCIAL MAGISTRATE JUDGE HANNA
SECURITY ADMINISTRATION
REPORT AND RECOMMENDATION
Before the court is an appeal of a partially favorable decision regarding the
claimant’s alleged disability. Considering the administrative record, the parties’
briefs, and the applicable law, and for the reasons set forth below, it is recommended
that the decision should be reversed and remanded for further administrative action.
Administrative Proceedings
The claimant, Sheman Redd Bernard, fully exhausted her administrative
remedies before initiating this action. She filed an application for disability
insurance benefits,1 an application for supplemental security income benefits,2 and
an amended application for benefits,3 collectively alleging that she became disabled
1 Rec. Doc. 7-1 at 162.
2 Rec. Doc. 7-1 at 164.
3 Rec. Doc. 7-1 at 170.
on May 27, 2009. Her applications were denied.4 She requested a hearing, which
was held on October 2, 2019, before Administrative Law Judge Carol Lynn Latham.5
The ALJ issued a decision on February 3, 2020, concluding that Ms. Bernard was
not disabled within the meaning of the Social Security Act through December 31,
2014, the date on which she was last insured for Social Security disability benefits,
but also concluding that she had been disabled since November 7, 2016.6 Ms.
Bernard asked the Appeals Council to review the ALJ’s decision, but the Appeals
Council found no basis for review.7 Therefore, the ALJ’s decision became the final
decision of the Commissioner for the purpose of judicial review.8 Ms. Bernard then
initiated this action, appealing the Commissioner’s decision.
Summary of Pertinent Facts
Ms. Bernard was born on February 10, 1970,9 and was just a few days shy of
her fiftieth birthday when the ALJ issued her decision. Ms. Bernard is a high school
graduate10 and took community college classes in cosmetology and private
4 Rec. Doc. 7-1 at 80, 82.
5 A transcript of the hearing is found in the record at Rec. Doc. 7-1 at 30-61.
6 Rec. Doc. 7-1 at 14-24.
7 Rec. Doc. 7-1 at 4.
8 Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005).
9 Rec. Doc. 7-1 at 32, 62.
10 Rec. Doc. 7-1 at 35, 162, 164.
security.11 She previously worked as a cook in a restaurant and a residential facility
and as a cafeteria worker and custodian for the Lafayette Parish School Board.12 She
alleged that she became disabled on May 27, 200913 due to a ruptured disc at L5 S1,
low back pain, and right leg pain14 resulting from a slip and fall incident at work.15
An MRI of Ms. Bernard’s lumbar spine, obtained on July 7, 2009, showed a
minor left lateral disc herniation at L5-S1 with no evidence of nerve root
displacement or compromise.16 A lumbar spine myelogram on March 1, 2010 was
normal.17 A post-myelogram lumbar spine CT of the same date showed a small
central broad-based disk herniation at L5-S1 with no definite nerve root
displacement or compromise.18 EMG and nerve conduction studies of the right leg
and low back were normal on March 30, 2010.19
11 Rec. Doc. 7-1 at 36.
12 Rec. Doc. 7-1 at 199.
13 Rec. Doc. 7-1 at 170, 188.
14 Rec. Doc. 7-1 at 188.
15 Rec. Doc. 7-1 at 33, 41, 522.
16 Rec. Doc. 7-1 at 285.
17 Rec. Doc. 7-1 at 279.
18 Rec. Doc. 7-1 at 278.
19 Rec. Doc. 7-1 at 277.
On August 17, 2010, Ms. Bernard saw Dr. Steven K. Staires for lumbar
discography at L3-4, L4-5, and L5-S1.20 She told Dr. Staires that she was injured in
May 2009 when she slipped on a wet floor and fell on her right buttock. A series of
lumbar epidural spinal injections had provided fifty percent relief for approximately
three to four weeks without sustained improvement, and she was considering lumbar
surgery. Physical therapy had helped initially but eventually worsened her pain. Ms.
Bernard complained of constant throbbing midline and right lumbar pain with
intermittent burning pain to the right buttock, down the lateral aspect of the right leg
and into the lateral foot. She also complained of intermittent swelling of the right
foot and intermittent numbness to the lateral aspect of the right leg and foot. She
reported that her pain worsened when she stood for more than ten minutes, sat for
more than twenty minutes, or bent forward. Examination showed tenderness, a
restricted lumbar range of motion, negative bilateral straight leg raise tests, and no
swelling of the extremities. Her right foot felt slightly cooler than the left. Pedal
pulses could not be palpated on the right. Discography was performed. Dr. Staires’s
impressions were post-traumatic lumbar pain, lumbar sprain; herniated nucleus
pulposus at L5-S1; lumbrosacral radiculitis; and discogenic syndrome at L5-S1. In
his opinion, Ms. Bernard’s symptoms suggested early complex regional pain
20 Rec. Doc. 7-1 at 280-282.
syndrome of the right lower extremity because there was autonomic instability with
coldness and only Doppler pulses were detectable in her right foot. A CT scan of
the lumbar spine with contrast, obtained the same day, showed degenerative disc
disease at L5-S1.21
A November 8, 2012 MRI of Ms. Bernard’s lumbar spine was positive for a
central and left lateral broad-based disc herniation at L5-S1 with a well-defined 1
cm extruded disc fragment extending into the anterior epidural space abutting the
left S1 nerve root.22
Ms. Bernard treated with Dr. Michel E. Heard, a board-certified orthopedic
surgeon in Lafayette, Louisiana, monthly between May 29, 2013 and December 23,
2013.23 At each appointment, Ms. Bernard complained of constant mid-back pain
rated 8 or 9 out of 10 as well as constant, burning, aching low back pain also rated 8
or 9 out of 10. Sitting straight leg raise tests were positive at five of the visits. She
used a cane at each appointment and limped at two of them. Dr. Heard’s impressions
at each visit were: mid back pain, low back pain with right radiculitis and disc
herniation at L5-S1 with instability, chronic pain syndrome/insomnia, and positive
valid lumbar discogram in the face of discogenic pain. In the treatment notes for the
21 Rec. Doc. 7-1 at 288.
22 Rec. Doc. 7-1 at 273.
23 Rec. Doc. 7-1 at 312-323, 269-272.
three later visits, he added “delay/denial of recommended lumbar surgery by
workers’ comp agents” to the list of impressions. He prescribed Zanaflex, Mobic,
Trazadone, Neurontin, and Ultram at each visit. Dendracin Topical and Medi-Derm
cream were added occasionally. At each appointment, Dr. Heard noted that the
medications were helping. The treatment notes also indicated that Ms. Bernard
received two trigger point injections of Celestone. Her motor and reflex exam was
intact at each visit. Dr. Heard also noted that spine surgeon Dr. McDonnell had
recommended instrumented lumbar fusion surgery. In Dr. Heard’s opinion, Ms.
Bernard was not able to lift more than ten pounds, not able to sit or stand more than
twenty minutes at a time, and not able to work in any capacity.
Ms. Bernard continued to see Dr. Heard monthly in 2014, except for February,
April, and September. In January,24 Dr. Heard noted that Ms. Bernard was having
sadness, insomnia, depression, and loss of interest in things; he added depression to
his impressions. In March,25 Dr. Heard recommended that Ms. Bernard obtain a
second opinion from spine surgeon Dr. Ray Williams. In May,26 Dr. Heard noted
that Ms. Bernard had seen Dr. Gunderson. In June,27 Dr. Heard noted that Ms.
24 Rec. Doc. 7-1 at 310-311.
25 Rec. Doc. 7-1 at 308-309.
26 Rec. Doc. 7-1 at 306-307.
27 Rec. Doc. 7-1 at 304-305.
Bernard’s pain increased with lumbar flexion and extension and after sitting or
standing in the same position for more than twenty minutes. He added Lidoderm
patches to her medication regimen. Dr. Heard’s treatment note from July 15, 201428
stated that he reviewed Dr. Clark Gunderson’s record from the same date, in which
Dr. Gunderson opined that Ms. Bernard had a disc herniation with complex regional
pain syndrome, a positive discogram, and needed a psychological evaluation, but did
not need lumbar surgery. When Ms. Bernard saw Dr. Heard the next day, July 16,
2014, he prescribed Celebrex, Trazadone, Zoloft, Lidoderm patches, and Ultram.29
In August,30 Ms. Bernard received a trigger point injection of Celestone in the right
paralumbar area. Dr. Heard agreed with Dr. Gunderson that she should have a
psychological evaluation and see an interventional pain specialist. In his opinion,
proceeding to surgery without those evaluations would put Ms. Bernard at risk for
failure. In October, Dr. Heard prescribed Flexeril, Neurontin, Trazadone, Zoloft,
and Ultram.31 In November, Ms. Bernard’s pain level was down to 6 out of 10,32 but
28 Rec. Doc. 7-1 at 303.
29 Rec. Doc. 7-1 at 301-302.
30 Rec. Doc. 7-1 at 299-300.
31 Rec. Doc. 7-1 at 297-298.
32 Rec. Doc. 7-1 at 295-296.
it increased again in December.33 Dr. Heard did not report a positive straight leg
raise test in 2014, his impressions remained the same at each visit during that year,
and he opined at each visit that Ms. Bernard was unable to work and had not reached
maximum medical improvement.
On October 29, 2014, Ms. Bernard saw Dr. James H. Blackburn for a
psychiatric evaluation.34 In his report, Dr. Blackburn summarized extensive medical
records for Ms. Bernard, many of which were not included in the administrative
record of this matter. The summary documented disagreement among physicians
concerning the validity of discography and whether Ms. Bernard needed lumbar
surgery. Ms. Bernard told Dr. Blackburn that she had been in constant pain since
the slip and fall accident, varying in intensity from 4 out of 10 to 9 out of 10
depending on her level of activity, position, and effort. She described her pain as a
burning, at times throbbing, ache in the middle of her back, radiating down her right
leg. She also reported some coldness in her right foot and incidental neck pain.
Ms. Bernard reported some crying spells and moderate depression following
her accident as well as frustration that her back was not healing. She denied marriage
or relationship problems, denied problems with memory or concentration, and
denied losing interest in previously-enjoyed activities although she reported that she
33 Rec. Doc. 7-1 at 293-294.
34 Rec. Doc. 7-1 at 509-530.
could no longer participate in those activities due to pain and physical limitations.
She denied panic attacks, feelings of worthlessness, and loss of emotional control.
She reported a positive family and credited her faith with sustaining her. She said
Dr. Heard had prescribed antidepressants, but she had stopped taking them. When
she met with Dr. Blackburn, Ms. Bernard was wearing a back brace and using a cane
for balance in case her leg gave way. Although she appeared to be in some physical
discomfort during the evaluation, her mood was essentially euthymic with no
indication of excessive depression or anxiety. Her thoughts were organized; her
judgment was good; and her intelligence was at least average.
Dr. Blackburn diagnosed Ms. Bernard with pain disorder with physical
components, lumbar disc disease and possible/probable complex regional pain
syndrome. Dr. Blackburn’s testing did not reveal any pathologic degree of
depression or anxiety and showed that she was participating validly in the testing.
Dr. Blackburn found that Ms. Bernard did not have a psychiatric or psychological
condition that was generating her pain. He also found no psychiatric
contraindication to Ms. Bernard having the orthopedic surgery proposed by Drs.
McDonnell, Heard, and Williams. Finally, he opined that Ms. Bernard did not
require and would not benefit from psychiatric care.
In 2015, Ms. Bernard saw Dr. Heard every month except February and June.35
Dr. Heard’s impressions at each visit were the same: mid back pain; low back pain
with right radiculitis and disc herniation at L5-S1 with instability; chronic pain
syndrome/insomnia and depression; positive valid lumbar discogram in the face of
discogenic pain; and delay/denial of recommended lumbar surgery by workers’
comp agents. Throughout the year, he continued to prescribe the same medications.
In the treatment notes for all visits in 2015, Dr. Heard indicated that Ms. Bernard’s
work status was unchanged, meaning that in his opinion, she remained unable to
work in any capacity. In January, a sitting straight leg raise test was positive at 50
degrees on the right. In February, Dr. Heard noted Dr. Blackburn’s opinion that
there was no need for psychiatric treatment and no contraindication to surgery. Ms.
Bernard had positive straight leg raise tests in March36 and April.37 Beginning in
April and continuing through the end of 2015, Dr. Heard stated in his list of
impressions that Ms. Bernard was not interested in any surgical options. Beginning
in September, he added that she was scared of surgery. In September, Dr. Heard
recommended pain management for Ms. Bernard; assigned a 10% anatomical
impairment rating of her body; stated that she could stand or sit at will;
35 Rec. Doc. 7-1 at 289-292, 347-363.
36 Rec. Doc. 7-1 at 289-290.
37 Rec. Doc. 7-1 at 362-363.
recommended that she should not engage in repetitive bending; and stated that she
was permanently disabled from medium, heavy, and very heavy work. The negative
implication of this last opinion is that Ms. Bernard was capable of performing light
or sedentary work, which seems to contradict Dr. Heard’s opinion that her work
status was unchanged and, therefore, she was unable to work in any capacity.
On January 20, 2016, Dr. Heard stated that a vocational rehabilitation
conference had been held on that date, Ms. Bernard had an anatomical impairment
rating of 10%, she was not at maximum medical improvement, and she was
approved for sedentary work.38 Dr. Heard did not list any specific reasons for the
change in his opinion regarding Ms. Bernard’s ability to work.
Ms. Bernard saw Dr. Heard in February, March, May, June, July, August,
October, and twice in November 2016.39 Sitting straight leg raise tests were positive
in October and November. In the treatment notes for the October and November
visits, Dr. Heard added a surgical recommendation to his list of impressions. From
February through October, Dr. Heard opined that Ms. Bernard was capable of
performing light and sedentary work. In the treatment note for November 7, 2016,
however, Dr. Heard noted that Ms. Bernard did not have a limp, did not use any
ambulatory aids, had increased pain after sitting or standing in one position for more
38 Rec. Doc. 7-1 at 346.
39 Rec. Doc. 7-1 at 326-345.
than twenty minutes, “must keep changing positions,” and “is unable to work in any
capacity.” In the treatment note for November 29, 2016, Dr. Heard reiterated that
Ms. Bernard was “unable to work in any capacity since November 7, 2016.”
When Dr. Heard saw Ms. Bernard on June 1, 2017, he again opined that she
had been unable to work in any capacity since November 7, 2016.40 His impressions
were the same as before, including his impression that a laminectomy/fusion was
recommended even though Ms. Bernard was not interested in any surgical options
and was scared of surgery.
Ms. Bernard saw Dr. Heard again on March 19, 2018.41 She complained of
mid-back and low back pain rated at nine out of ten. She was given an injection of
Celestone in the right paralumbar area. Mobic and Ultram were prescribed. Dr.
Heard noted that she was unable to work in any capacity. His impressions remained
the same as previously stated.
More than a year later, on October 1, 2019, Ms. Bernard saw Dr. Heard
again.42 She rated her mid-back and low back pain at eight out of ten. A sitting
straight leg raise test was negative. She had a limp but did not use an ambulatory
aid. All of Dr. Heard’s impressions remained the same. He prescribed Mobic,
40 Rec. Doc. 7-1 at 325.
41 Rec. Doc. 7-1 at 508.
42 Rec. Doc. 7-1 at 533-534.
Trazadone, and Ultram, recommended a recheck in six months, and stated that Ms.
Bernard had not been able to work in any capacity since November 7, 2016. Dr.
Heard also filled out a form indicating that Ms. Bernard could stand and sit only for
fifteen minutes without needing a break, could lift ten pounds occasionally during
an eight-hour workday, and could frequently lift only five pounds during a workday.
He indicated that she could not perform sedentary duty on a full-time basis. He also
noted that it was medically necessary for Ms. Bernard to be able to lie down flat
when necessary during the workday.
The very next day, on October 2, 2019, Ms. Bernard testified at a hearing,
explaining that she was injured at work in 2009 and filed a workers’ compensation
claim that was settled in 2017. She stated that she met with a vocational
rehabilitation counselor before the claim settled, but her medications prevented her
from going back to work. She stated that Ultram made her dizzy, nauseated,
irritable, and groggy.
Ms. Bernard explained her understanding that she had a ruptured disc at L5-
S1 that radiated to her right leg, which got numb and tingly. She stated that her foot
got numb and turned blue in the winter. She stated that a recommended surgical
procedure was approved by the workers’ compensation carrier eight years after the
accident occurred, but she elected not to have surgery because of the delay in
approving the procedure, because she was older, and because a permanent fix was
not guaranteed. She reported that a psychiatrist she consulted told her that the delay
in having surgery worsened her condition. She stated that her back and leg bothered
her all the time, but some days were better than others. She explained that she could
sit or stand for about twenty minutes without changing position. She testified that
lying down relieved her pain, so she spent most of the day lying down. She stated
that cold weather and rain increased her symptoms. She stated that she could not
drive long distances because her driving leg was affected. She said she had difficulty
sleeping because it is hard for her to get comfortable in bed, but she usually napped
twice a day.
Ms. Bernard stated that she could do some household chores while sitting
down to wash dishes or cook a little, but her husband did most chores. She watched
TV, sat outside, grocery shopped with assistance, went to Bible class on Tuesdays,
and went to church on Sundays. She explained that she could no longer participate
in fishing or other outdoor sports that she formerly enjoyed. She explained that she
stopped seeing Dr. Heard every month because she could not afford it, and he now
wanted to see her every six months. She stated that she could lift and carry only five
to ten pounds. She stated that Dr. Heard prescribed depression medication that she
took when needed, but she was out of that medication at the time of the hearing. The
day before the hearing, Dr. Heard prescribed Mobic, Tramadol, and Ultram.
Ms. Bernard now seeks reversal of the Commissioner’s adverse ruling.
Analysis
A. Standard of Review
Judicial review of the Commissioner's denial of disability benefits is limited
to determining whether substantial evidence supports the decision and whether the
proper legal standards were used in evaluating the evidence.43 “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.”44 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.’”45
If the Commissioner's findings are supported by substantial evidence, they are
conclusive and must be affirmed.46 In reviewing the Commissioner's findings, a
court must carefully examine the entire record, but refrain from re-weighing the
evidence or substituting its judgment for that of the Commissioner.47 Conflicts in
43 Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995).
44 Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
45 Hames v. Heckler, 707 F.2d at 164 (citations omitted).
46 42 U.S.C. § 405(g); Martinez v. Chater, 64 F.3d at 173.
47 Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988); Villa v. Sullivan, 895 F.2d at 1022.
the evidence48 and credibility assessments49 are for the Commissioner to resolve, not
the courts. 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.50
B. Entitlement to Benefits
The Disability Insurance Benefit (“DIB”) program provides income to
individuals who are forced into involuntary, premature retirement, provided they are
both insured and disabled, regardless of indigence.51 The Supplemental Security
Income (“SSI”) program provides income to individuals who meet certain income
and resource requirements, have applied for benefits, and are disabled.52
A person is disabled “if he is unable 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
48 Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
49 Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991).
50 Wren v. Sullivan, 925 F.2d at 126.
51 See 42 U.S.C. § 423(a). See, also, Smith v. Berryhill, 139 S.Ct. 1865, 1772 (2019).
52 42 U.S.C. § 1382(a)(1) & (2). See, also, Smith v. Berryhill, 139 S.Ct. at 1772.
last for a continuous period of not less than twelve months.”53 A claimant is disabled
only if his physical or mental impairment or impairments are so severe that he is
unable to not only do his previous work, but cannot, considering his age, education,
and work experience, participate in any other kind of substantial gainful work which
exists in significant numbers in the national economy, regardless of whether such
work exists in the area in which the claimant lives, whether a specific job vacancy
exists, or whether the claimant would be hired if he applied for work.54
C. Evaluation Process and Burden of Proof
The Commissioner uses a sequential five-step inquiry to determine whether a
claimant is disabled, which considers whether the claimant (1) is currently engaged
in substantial gainful activity; (2) has a severe impairment; (3) has an impairment
enumerated in the relevant regulations; (4) is able to do the kind of work he did in
the past; and (5) can perform any other work.55
Before going from step three to step four, the Commissioner evaluates the
claimant's residual functional capacity56 by determining the most the claimant can
still do despite his physical and mental limitations based on all relevant evidence in
53 42 U.S.C. § 1382c(a)(3)(A).
54 42 U.S.C. § 1382c(a)(3)(B).
55 20 C.F.R. § 404.1520; Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018).
56 20 C.F.R. § 404.1520(a)(4).
the record.57 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.58
The claimant bears the burden of proof on the first four steps; at the fifth step,
however, the Commissioner bears the burden of showing that the claimant can
perform other substantial work in the national economy.59 This burden may be
satisfied by reference to the Medical-Vocational Guidelines of the regulations, by
expert vocational testimony, or by other similar evidence.60 If the Commissioner
makes the necessary showing at step five, the burden shifts back to the claimant to
rebut this finding.61 If the Commissioner determines that the claimant is disabled or
not disabled at any step, the analysis ends.62
57 20 C.F.R. § 404.1545(a)(1).
58 20 C.F.R. § 404.1520(e).
59 Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016); Bowling v. Shalala, 36 F.3d 431, 435
(5th Cir. 1994).
60 Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
61 Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Fraga v. Bowen, 810 F.2d at 1302.
62 20 C.F.R. § 404.1520(a)(4); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert.
den. 914 U.S. 1120 (1995) (quoting Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)).
D. The ALJ’s Findings and Conclusions
The ALJ determined, at step one, that Ms. Bernard has not engaged in
substantial gainful activity since the alleged disability onset date. This finding is
supported by substantial evidence in the record and was not challenged.
At step two, the ALJ found that Ms. Bernard has the following severe
impairments: lumbar degenerative disc disease and pain disorder. This finding is
supported by substantial evidence in the record and was not challenged.
At step three, the ALJ found that Ms. Bernard has no impairment or
combination of impairments that meets or medically equals the severity of a listed
impairment. This finding was not challenged.
The ALJ found that Ms. Bernard had the residual functional capacity to
perform the full range of sedentary work prior to November 7, 2016. The claimant
challenged this finding. The ALJ also found that, beginning on November 7, 2016,
Ms. Bernard had the residual functional capacity to perform sedentary work except
that she would be off task fifteen percent of the workday due to pain and the need
for additional breaks (beyond the customary breaks and lunch period). Ms. Bernard
did not challenge this finding.
At step four, the ALJ found that Ms. Bernard has been unable to perform any
past relevant work since May 27, 2009. Ms. Bernard did not challenge this finding.
At step five, the ALJ found that Ms. Bernard was not disabled from the alleged
disability onset date through November 7, 2016 because there were jobs in the
national economy that she could perform. Ms. Bernard challenged this finding. The
ALJ further found that, beginning on November 7, 2016, there were no jobs in the
national economy that she could perform; accordingly, the ALJ found that Ms.
Bernard became disabled on November 7, 2016 and was disabled through the date
of the decision. Ms. Bernard did not challenge this finding.
E. The Allegations of Error
Ms. Bernard argued that the ALJ erred in finding that she first became
disabled on November 7, 2016, after she was no longer insured for disability
insurance benefits and no longer eligible for Medicare qualified government
employee (“MQGE”) benefits.
F. Analysis
Ms. Bernard was injured in a workplace incident in 2009. Diagnostic testing
conducted in July 2009 showed a herniated disc at L5-S1. This diagnosis was
confirmed with further testing in March 2010, August 2010, and November 2012.
Some of the physicians that Ms. Bernard saw recommended surgery, while others
did not believe surgery would help her condition. Her workers’ compensation
carrier delayed approval of the recommended surgery. Ultimately, her treating
physician recommended that Ms. Bernard undergo a lumbar laminectomy/fusion,
but by the time the surgery was approved by the workers’ compensation carrier, Ms.
Bernard decided not to have the recommended procedure.
The evidence in the record shows that, from at least mid-2013 forward, Ms.
Bernard’s complaints were consistent: mid-back and low back pain radiating down
her right leg into her right foot, with tingling and numbness accompanied by an
inability to sit or stand for more than twenty minutes at a time. She sometimes had
positive straight leg raise tests, motor and reflex examinations were always intact,
she sometimes walked with a limp, and she sometimes used a cane.
The ALJ found that Ms. Bernard had the residual functional capacity to
perform the full range of sedentary work at all times after the alleged disability onset
date but, beginning on November 7, 2016, would be off task 15% of the workday
due to pain and the need for additional breaks. Based on this assessment, the ALJ
found that Ms. Bernard became disabled on November 7, 2016, stating that
“beginning on November 7, 2016, the claimant’s allegations regarding her
symptoms and limitations are consistent with the evidence.”63 Justifying that
conclusion, the ALJ noted that “[d]uring a following-up appointment with Dr. Heard
on November 7, 2016, the claimant asserted that she had to keep changing positions
and had increased pain after sitting in one position greater than 20 minutes or
63 Rec. Doc. 7-1 at 20.
standing in one position greater than 20 minutes. . . . Dr. Heard determine [sic] the
claimant was unable to work in any capacity.”64 The ALJ found Dr. Heard’s opinion
that Ms. Bernard was unable to work in any capacity after November 7, 2016 to be
“persuasive and consistent with the evidence of record.”65
Ms. Bernard argued that this finding was not supported by substantial
evidence in the record because nothing changed on November 7, 2016. Specifically,
she argued that “her symptomology and limitations remained the same.”66 In
response, the Commissioner argued that what had changed was the treating
physician’s opinion regarding her ability to work. “Dr. Heard’s opinion regarding
[Ms. Bernard’s] functional ability changed as of November 7, 2016.”67 The
Commissioner also argued that “[s]ubstantial evidence supports the ALJ’s finding
that [Ms. Bernard] could perform a full range of sedentary work prior to November
7, 2016, and became disabled due to an inability to stay as of that date.”68
This Court does not understand the meaning of the phrase “an inability to
stay.” If the Commissioner meant that, as of November 7, 2016, Ms. Bernard was
64 Rec. Doc. 7-1 at 20.
65 Rec. Doc. 7-1 at 21.
66 Rec. Doc. 8 at 5.
67 Rec. Doc. 9 at 5.
68 Rec. Doc. 9 at 6.
unable to stay in one position, i.e., sitting or standing for more than twenty minutes
at a time, the argument lacks merit. In the earliest of Dr. Heard’s treatment notes in
the record, dated May 29, 2013, and on other dates thereafter, the doctor stated that
Ms. Bernard was unable to sit or stand for longer than twenty minutes at a time. That
was also Dr. Heard’s impression in November 2016. Thus, there was no change.
If the Commissioner meant that, as of November 7, 2016, Ms. Bernard was
unable to stay focused on her work 100% of the workday but would be off-task for
15% of the day, that argument also lacks merit. The vocational expert who testified
at the hearing opined that a hypothetical person would be unemployable if he or she
stayed off-task for 15% of the workday. The ALJ found “that the claimant’s severe
impairments and related symptoms limit her to performing a modified range of
sedentary work, which is supported by the objective medical record. Due to
degenerative disc disease and related pain symptoms, she is expected to be off task
15 percent of the workday.”69 But the only reference to being off-task 15% of the
workday is found in the vocational expert’s hearing testimony, and there is no
evidence in the record tying the vocational expert’s testimony to any particular time
period. This Court found no evidence in the record that Dr. Heard or any other
medical professional opined that Ms. Bernard’s symptoms would result in her being
69 Rec. Doc. 7-1 at 21.
off-task 15% of the workday. More important, Ms. Bernard had the same pain and
other symptoms as well as the same diagnosis in May 2013 as she had on November
7, 2016. Therefore, there is no evidentiary basis for finding that she would be off-
task 15% of the day in November 2016 but not off-task that same amount in May
2013 or any other date after her May 2009 accident.
It appears that the ALJ’s finding that Ms. Bernard was not disabled before
November 2016 but was disabled on and after November 7, 2016 is based solely on
the change in Dr. Heard’s opinion regarding Ms. Bernard’s functionality. In her
ruling, the ALJ expressly stated that she found Dr. Heard’s opinion that Ms. Bernard
was unable to work in any capacity after November 7, 2016 “persuasive and
consistent with the evidence of record.”70 But Dr. Heard also opined that Ms.
Bernard was unable to work in any capacity from May 2013 until January 2016, and
that opinion was based on the same diagnosis, the same symptoms, and the same
functional deficits. This Court does not understand why Dr. Heard’s opinion of
November 2016 was “persuasive” while the same opinion expressed repeatedly
between May 2013 and December 2015 was not persuasive. The only time period
during which Dr. Heard opined that Ms. Bernard was capable of performing light or
70 Rec. Doc. 7-1 at 21.
sedentary work was between January and November 2016, and there is no clear
evidence in the record as to why his opinion was different during that time period.
From May 2013 through August 2015, Ms. Bernard’s treating physician, Dr.
Heard, opined that she was unable to work in any capacity. Dr. Heard’s treatment
note from September 2015 is inconsistent. In that treatment note, he opined that she
was permanently disabled from medium, heavy, and very heavy work but he also
stated that her work status was unchanged, i.e., she was unable to work in any
capacity. In October, November, and December 2015, Dr. Heard again stated that
Ms. Bernard’s work status was unchanged. On January 20, 2016, a vocational
rehabilitation conference was held. After reviewing Ms. Bernard’s chart, diagnosis,
restrictions, and then current treatment recommendations with a vocational
rehabilitation counselor, Dr. Heard approved Ms. Bernard for sedentary work. His
treatment notes do not explain why Dr. Heard changed his opinion concerning Ms.
Bernard’s ability to work. In February 2016, Dr. Heard changed his opinion again
and stated that Ms. Bernard was approved for light and sedentary work. Again, no
basis for the change was explained. He then reiterated that same opinion in March,
May, June, July, and October 2016. In November 2016, however, he changed his
mind again and opined that Ms. Bernard was unable to work in any capacity. The
ALJ found this last opinion persuasive but did not find any of Dr. Heard’s earlier
opinions regarding Ms. Bernard’s ability to work persuasive. In fact, the ALJ stated
that she “will not defer or give any specific evidentiary weight, including controlling
weight, to any prior. . . medical opinion(s), including those from your medical
sources.”71 Thus, the ALJ expressly refused to give any weight to any of Dr. Heard’s
opinions other than his opinion that, as of November 7, 2016, Ms. Bernard was no
longer able to work in any capacity.
Ms. Bernard’s application for benefits was filed after March 17, 2017.
Therefore, the ALJ’s duty to weigh medical opinions is governed by 20 C.F.R.
404.1520c. Although an ALJ is no longer required to give controlling weight to a
treating physician’s medical opinions, the regulations state that “[w]hen a medical
source provides one or more medical opinions. . . , we will consider those medical
opinions. . . from that medical source together using the factors listed in paragraphs
(c)(1) through (c)(5) of this section, as appropriate.”72 The factors to be considered
are the examining relationship, the treatment relationship, the length of the treatment
relationship and frequency of examination, the nature and extent of the treatment
relationship, supportability, consistency, specialization, and any other factor which
the claimant brings to the court's attention.73 The two most important factors are
71 Rec. Doc. 7-1 at 21.
72 20 C.F.R. § 404.1520c(a).
73 20 C.F.R. § 404.1520c(c)(1-5).
supportability and consistency.74 With regard to supportability, the regulation states
that “[t]he more relevant the objective medical evidence and supporting explanations
presented by a medical source are to support his or her medical opinion(s). . . , the
more persuasive the medical opinions. . . will be.”75 With regard to consistency, the
regulation states that “[t]he more consistent a medical opinion(s). . . is with the
evidence from other medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s). . . will be.”76 Thus, the regulation requires that
all of Dr. Heard’s medical opinions were to be considered together, focusing
primarily on the supportability and consistency of his opinions.
But that is not what the ALJ did in this case. Instead, the ALJ singled out one
of Dr. Heard’s opinions and based her ruling on that one opinion. Dr. Heard’s
opinions from 2013, 2014, and 2015 that Ms. Bernard was unable to work in any
capacity are consistent with other evidence, supported with explanations from Dr.
Heard, and just as persuasive as his November 2016 opinion. Still, the ALJ ignored
the earlier opinions. This was error on the part of the ALJ. The ALJ violated her
duty to weigh medical source opinions in accordance with agency regulations and
74 20 C.F.R. § 404.1520c(b)(2).
75 20 C.F.R. § 404.1520c(c)(1).
76 20 C.F.R. § 404.1520c(c)(2).
rulings, and to reject or discount those opinions only for good cause.77
Consequently, the ALJ’s residual functional capacity finding is not supported by
substantial evidence in the record, and that erroneous finding led to the ALJ’s
equally erroneous conclusion that Ms. Bernard became disabled on November 7,
2016 but was not disabled before that date.
This was not harmless error. An ALJ’s error is harmless when it is
inconceivable that a different administration conclusion would have been reached
absent the error.78 In this case, the ALJ could have relied on Dr. Heard’s earlier
opinions or on Dr. Heard’s earlier opinions in conjunction with his opinion of
November 2016 and, in either case, could have concluded that Ms. Bernard became
disabled earlier. Therefore, the ALJ’s decision to rely solely on the opinion set forth
in Dr. Heard’s treatment notes for Ms. Bernard’s November 7, 2016 appointment
was not a harmless error.
Although “the determination of residual functional capacity is the sole
responsibility of the ALJ,”79 a residual functional capacity finding must be supported
by substantial evidence in the record. Here, that is not the case. Therefore, the
77 See Kneeland v. Berryhill, 850 F.3d 749, 759-61 (5th Cir. 2017).
78 See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).
79 Taylor v. Astrue, 706 F.3d 600, 602-03 (5th Cir. 2012) (per curiam).
Commissioner’s decision must be remanded for another evaluation of Ms. Bernard’s
residual functional capacity.
Conclusion and Recommendation
For the foregoing reasons, this Court recommends that the Commissioner’s
decision should be REVERSED and REMANDED to the Commissioner pursuant to
the fourth sentence of 42 U.S.C. § 405(g) with instructions to reevaluate Ms.
Bernard’s residual functional capacity as of the alleged disability onset date of May
27, 2009 and thereafter. Inasmuch as the reversal and remand recommended herein
falls under sentence four of Section 405(g), any judgment entered in connection
herewith will be a “final judgment” for purposes of the Equal Access to Justice Act
(EAJA).80
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule Fed. R. Civ. P.
72(b), parties aggrieved by this recommendation have fourteen days from receipt of
this report and recommendation to file specific, written objections with the Clerk of
Court. A party may respond to another party’s objections within fourteen days after
receipt of a copy of any objections or responses to the district judge at the time of
filing.
80 See, Richard v. Sullivan, 955 F.2d 354 (5th Cir. 1992), and Shalala v. Schaefer, 509 U.S.
292 (1993).
Failure to file written objections to the proposed factual findings and/or the
proposed legal conclusions reflected in the report and recommendation within
fourteen days following the date of receipt, or within the time frame authorized by
Fed. R. Civ. P. 6(b) shall bar an aggrieved party from attacking either the factual
findings or the legal conclusions accepted by the district court, except upon grounds
of plain error.®!
Signed in Lafayette, Louisiana, this 8" day of October 2021.
wernt (PA
UNITED STATES MAGISTRATE JUDGE
81 See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5" Cir. 1996) (en
banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).
30