Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gainey v. Colvin

United States District Court, S.D. Mississippi, Jackson Division

August 1, 2014

DOLLY GAINEY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

LINDA R. ANDERSON, Magistrate Judge.

Dolly Gainey appeals the final decision denying her application for Disability Insurance Benefits ("DIB"). The Commissioner requests an order pursuant to 42 U.S.C. § 405(g), affirming the final decision of the Administrative Law Judge. Having carefully considered the hearing transcript, the medical records in evidence, and all the applicable law, the undersigned recommends that the decision be affirmed.

Factual and Procedural Background

On March 17, 2010, Gainey protectively filed a Title II application for disability benefits alleging she became disabled on January 3, 2008, due to osteoarthritis, nerve pain, and a neck injury. She later amended her onset date to April 1, 2009. She was 52 years old at the time of filing, and has a GED with past work experience as a refurbishing operator. The application was denied initially and on reconsideration. Gainey appealed the denial and on January 4, 2012, Administrative Law Judge James F. Barter ("ALJ") rendered an unfavorable decision finding that Plaintiff had not established a disability within the meaning of the Social Security Act. The Appeals Council denied Plaintiff's request for review. She now appeals that decision.

Upon reviewing the evidence, the ALJ concluded that Plaintiff was not disabled under the Social Security Act. At step one of the five-step sequential evaluation, [1] the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 1, 2009. At steps two and three, the ALJ found that although Plaintiff's "status post surgery on cervical spine times two, status post ulnar nerve transposition surgery, and mild degenerative disc disease of the lumbar spine" were severe, they did not meet or medically equal any listing. At step four, the ALJ found that Plaintiff had the residual functional capacity to perform light work, except she is limited to lifting/carrying and pushing/pulling twenty pounds occasionally and ten pounds frequently. She can also stand, walk, and sit for six hours in an eight-hour workday, but can only occasionally use her left upper extremity. Based on vocational expert testimony, the ALJ concluded at step five, that given Plaintiff's age, education, work experience, and residual functional capacity, she could perform work as a gate-attendant, a flagger in highway construction, and a motel desk-clerk.[2]

Standard of Review

Judicial review in social security appeals is limited to two basic inquiries: "(1) whether there is substantial evidence in the record to support the [ALJ's] decision; and (2) whether the decision comports with relevant legal standards." Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (citing Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991)). Evidence is substantial if it is "relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting Anthony v. Sullivan, 954 F.2d at 295 (5th Cir. 1992)). This Court may not re-weigh the evidence, try the case de novo, or substitute its judgment for that of the ALJ, even if it finds evidence that preponderates against the ALJ's decision. Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994).

Discussion

Plaintiff argues that the Commissioner's decision should be reversed or alternatively remanded because the ALJ failed to apply the proper legal standards in considering the medical opinion evidence, and failed to resolve conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles. The Court rejects these arguments for the reasons that follow.

As her first point of error, Plaintiff argues that the ALJ failed to properly consider the medical source statement of her family doctor and treating physician, Dr. Russell Belenchia. Specifically, she asserts that the ALJ failed to fully explain his reasons for discounting Dr. Belenchia's opinion, and failed to perform the statutory analysis outlined in 20 C.F.R. § 404.1527(c).

The Fifth Circuit has long held that "absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views" under the criteria set forth in 20 C.F.R. § 404.1527(c)(2). Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000) (emphasis in original). The statutory analysis requires the ALJ to consider the length of treatment; the frequency of examination; the nature and extent of the treatment relationship; the extent to which his opinions were supported by the medical record; the consistency of his opinion with the record as a whole; and the specialization of the physician. Id. However, an ALJ is required to perform the statutory analysis only when the ALJ "rejects the sole relevant medical opinion before it." Qualls v. Astrue, 339 F.App'x 461, 467 (5th Cir. 2009). An ALJ need not consider each of the § 404.1527(c) factors where "there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another." Walker v. Barnhart, 158 Fed.App'x. 534 (5th Cir. 2005) (citing Newton 209 F.3d at 458). The ALJ was presented with competing first-hand medical evidence to support his assessment of Dr. Belenchia's medical source statement in this case.

The ALJ found Dr. Belenchia's opinion was entitled to no weight because it was not supported by his treatment notes and was inconsistent with the weight of the evidence. Plaintiff counters that she was treated by Dr. Belenchia eleven times during the relevant time period, and no other physician treated her more frequently or had a more longitudinal picture of her condition. While clinic records confirm that Plaintiff was treated by Dr. Belenchia for approximately one year, the Court notes that he completed his medical source statement the same day he conducted his initial examination of the claimant on June 8, 2010. Plaintiff's chief complaints at that time were neck, back, and shoulder pain, but Dr. Belenchia's clinic records reflect that she was subsequently treated primarily for elbow pain and sinus symptoms. Based on the initial examination, Dr. Belenchia opined that Plaintiff could frequently lift less than ten pounds and occasionally lift twenty pounds. He also opined that she could not sit, stand, or walk for longer than two hours in an eight-hour workday; would need to alternate sitting and standing at will; and, had postural, manipulative, and environmental limitations. That same day, Dr. Belenchia referred Plaintiff to a neurosurgeon, Dr. David Malloy, for an evaluation of her neck pain. Significantly, he did not await Dr. Malloy's examination findings before completing his medical source statement.[3]

On June 14, 2010, Plaintiff informed Dr. Malloy that she had been experiencing neck pain intermittently since 2008, which was now constant no matter her activity level and worse in the morning. She also complained of pain in her lower back. Dr. Malloy noted that Plaintiff had undergone two cervical spine surgeries and a left ulnar nerve surgery several years prior. On examination, he observed that Plaintiff had good muscle strength in her upper and lower extremities; her light touch sensations were intact; and, her reflexes were 1 throughout both upper and lower extremities, with "[n]o true restriction to straight leg raising although it did cause her to have some increased pain in the low back area." He also observed that she had a very limited range of motion in both her cervical and lumbar spines due to discomfort, but her stance and gait were unremarkable. Cervical spine x-rays also showed moderate degenerative and spondylitic changes and a "good solid fusion at the C4-C5 level." Based on his examination findings, Dr. Malloy opined that Plaintiff had mechanical neck pain but did not require any further surgical intervention. He recommended instead that Plaintiff undergo physical therapy to address her symptoms, and opined that she would likely have "some ongoing complaints of neck pain throughout the remainder of her life, " but with exercise, physical therapy, and intermittent use of mild anti-inflammatories, her symptoms would be reasonably well controlled.[4]

Dr. Belenchia's clinic records following Dr. Malloy's assessment confirm that Plaintiff was treated conservatively for her pain. In October 2010, Dr. Belenchia observed that Plaintiff had elbow pain with palpation, but no edema or erythema, and diagnosed her with a right elbow osteoarthritic flare. As treatment, he recommended that she wear an elbow splint at night for immobilization and apply an ice pack as needed; he also prescribed anti-inflammatory and pain medications. In March 2011, Plaintiff complained that she experienced back pain that improved with pain medication. As treatment, Dr. Belenchia increased her pain medication and instructed her to follow up in three months. Muscle stretches and exercises were ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.