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Mingo v. Colvin

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

June 3, 2015

YOLANDA MINGO Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

REPORT AND RECOMMENDATIONS

MICHAEL T. PARKER, Magistrate Judge.

Plaintiff Yolanda Mingo ("Mingo") brings this action pursuant to 42 U.S.C. ยง 405(g), and seeks judicial review of a final decision of the Commissioner of the Social Security Administration denying her claim for social security disability insurance benefits. The matter is now before the Court on Defendant's Motion [14] to Affirm the Decision of the Commissioner. Having considered the pleadings, the record and the applicable law, the undersigned recommends that the Motion [14] be GRANTED.

PROCEDURAL HISTORY

On January 18, 2011, Plaintiff Yolanda Mingo filed an application for a period of disability and disability insurance benefits, alleging a disability onset date of May 8, 2010. (Administrative Record [9] at 138.)[1] This application was denied initially and upon reconsideration. ([9] at 101; 106.) Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ([9] at 109.)

On November 6, 2012, a hearing was convened before ALJ Wallace E. Weakley. ([9] at 27.) Plaintiff waived her right to representation by an attorney. ([9] at 137.) The ALJ heard testimony from the Plaintiff and vocational expert ("VE") Tom Steward. ([9] at 35; 55.) On February 20, 2013, the ALJ issued a finding that Plaintiff was not disabled. ([9] at 9-22.) Plaintiff appealed this decision and submitted additional evidence to the Appeals Council.[2] ([9] at 8.) The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. ([9] at 4-8.)

Plaintiff filed her Complaint on May 15, 2014, requesting an order from this Court reversing the Commissioner's final decision and directing the Commissioner to award benefits to the Plaintiff, or in the alternative, remand the case for hearing held in accordance with the requirements of the Social Security Act, Administrative Procedure Act, and the United States Constitution. See Complaint [1] at 5. Plaintiff also requests the Court to award her attorney's fees and the costs and fees of this action. Id. The Commissioner answered the Complaint, denying that Plaintiff is entitled to any relief, see Answer [8], and filed a Motion [14] to affirm the Commissioner's decision. The parties having briefed the issues in this matter pursuant to the Court's Scheduling Order [3], the matter is now ripe for decision.

MEDICAL/FACTUAL HISTORY

Plaintiff was forty years old at the time her alleged disability onset date. ([9] at 138.) Plaintiff completed high school and attended college for a short period of time. ([9] at 36-37.) She has work experience as a teacher's assistant and assembly line worker. ([9] at 37-39; 160.) In her disability report, Plaintiff alleged that she had been unable to work since May 8, 2010 - the date she was involved in a motor vehicle accident. Plaintiff alleged that she suffers from the following conditions: neck injury, back injury, deep vein thrombosis ("DVT"), thyroid nodules, right kidney cysts, medical collateral ligament ("MCL") strain and quad strain, enlarged lymph nodes in chest, abnormal EKG, and chest pain. ([9] at 159).[3]

The administrative record in this case contains voluminous medical documents from various providers. While these records reference multiple medical issues of the Plaintiff, the undersigned will outline only those records pertaining to the conditions the Plaintiff argues should have met or equaled a listed impairment.

Plaintiff was seen at Forrest General Hospital on May 8, 2010, following a motor vehicle collision. Her admittance records reflect that Plaintiff was wearing her seat belt and sitting in the rear seat when the car was struck from behind by another vehicle. She complained of pain in her neck, lower back and right groin. Dr. Joseph J. Patterson noted that Plaintiff's neck was "supple with paracervical and trapezius muscle tenderness." ([9] at 222.) Dr. Patterson also examined Plaintiff's groin and extremities and noted no evidence of bruising, swelling, or injury. He noted that a CT of Plaintiff's head was negative, and a CT of her cervical spine showed no fracture. He diagnosed Plaintiff with neck and back strain. ([9] at 223.)

On May 10, 2010, Plaintiff returned to the emergency room, complaining of right leg pain and swelling. An ultrasound of Plaintiff's leg was performed to exclude DVT, with normal results. Plaintiff was diagnosed with right leg pain of uncertain etiology, and was instructed to have another ultrasound of the right leg within two or three days. ([9] at 225.)

On May 12, 2010, Plaintiff returned once more to the emergency room at Forrest General, after having tested positive for DVT at her primary care physician's office. A new ultrasound showed a small amount of DVT in the proximal greater saphenous vein as well as nonocclusive thrombus extending from the common femoral vein down to the popliteal vein. Plaintiff was immediately given Arixtra[4] and Coumadin.[5] Routine blood tests were taken and Plaintiff was admitted as a patient. ([9] at 226-27.) Plaintiff was discharged from Forrest General on May 14, 2010, with a diagnosis of DVT and secondary diagnosis of neck and back pain. She was directed to remain on medication for several days, but was in stable condition. ([9] at 220.)

Plaintiff saw orthopedist Dr. Vance M. McKaller at the Walk-In Spine Center on May 17, 2010. Dr. McKellar noted that Plaintiff had mild tenderness in the paracervical muscles, the parascapular area, the mid-thoracic region and lower back area. However, Dr. McKallar also noted that there was no evidence of weakness or myelopathy, and that Plaintiff had a good range of motion. He stated that Plaintiff's x-rays showed no evidence of fracture or osseous abnormality. Dr. McKallar opined that Plaintiff likely had cervical strain, whiplash, thoracic/back contusions and a muscle spasm, but that with time and medication, he thought she would "continue to improve." ([9] at 242.)

On May 24, 2010, Plaintiff returned to the Forrest General emergency room. Plaintiff had undergone a PT/INR[6] test at the Hattiesburg Clinic that day, and was told that her results were abnormal. Except for the high INR, Plaintiff denied all complaints. She was admitted to the hospital in order to monitor her INR levels. Her medications were adjusted and she was given plasma. ([9] at 218-19.) By the next day, Plaintiff's INR levels were normal and she was discharged. Dr. Catherine Charel Graversen noted that Plaintiff's right leg remained swollen due to the DVT, but stated that "this will be a long-term issue and will take quite some time to resolve." ([9] at 217.)

At an appointment at the Hattiesburg Clinic on June 8, 2010, Dr. Mark Stevens noted that Plaintiff was "cheerful, cooperative and in no distress." His examination showed that Plaintiff had no back tenderness and no edema in her extremities. ([9] at 344-45.)

On June 21, 2010, Plaintiff had a follow-up ultrasound of her right lower extremity that showed no evidence of DVT. ([9] at 236-37.)

Plaintiff had another appointment with her orthopedist on July 15, 2010. Dr. McKellar noted that Plaintiff still had some neck pain and right knee pain, but that there was no evidence of weakness or myelopathy. He recommended that she continue to take anti-inflammatory medication and prescribed her a muscle relaxer. ([9] at 241.)

On July 30, 2010, Plaintiff visited the Hattiesburg Clinic complaining of knee pain. Nurse Practitioner Billy Windham noted that Plaintiff had acute to modest tenderness along the joints in her knee, but that x-rays failed to reveal any bone injury. Furthermore, Dr. Steven Cunningham examined Plaintiff's x-rays and opined that "[t]he osseous structures are normal and joint spaces are well maintained. No fractures, dislocation, or destructive lesions are seen. The overlying soft tissues are normal." Windham diagnosed Plaintiff with a MCL strain and fitted her with a hinged knee brace. He also recommended that Plaintiff attend physical therapy. ([9] at 338-40.)

On September 14, 2010, Plaintiff went to the Hattiesburg clinic for an MRI of her lumbosacral spine, cervical spine and right knee. The MRI of her lumbosacral spine showed a slight desiccation[7] without loss of disc height at the L5-S1 level, but was otherwise unremarkable. The desiccation was described as a "minor degenerative change[]." ([9] at 448-49.) The MRI of her cervical spine initially showed degenerative changes at C5-C6, but a follow-up MRI showed only a slight straightening of the normal cervical lordosis[8] and was otherwise unremarkable. ([9] at 450-51.) Plaintiff's results were later reviewed and she was diagnosed with cervicalgia[9] and lumbago.[10] ([9] at 443.)

As mentioned above, Plaintiff also had an MRI of on her right knee. Nurse Practitioner Billy Windham noted that Plaintiff had modest tenderness over her knee, but that she had no pain along the medial or lateral joint line or LCL. She also demonstrated full flexion and extension of the knee. Dr. Juan Velez reviewed her MRI, which he found to be unremarkable. ([9] at 447.)

On November 10, 2010, Plaintiff's right knee was examined by Nurse Practitioner Windham at the Hattiesburg Clinic. Plaintiff stated that physical therapy had been "very beneficial for her" and that she was "pleased with her progress." Windham's examination of Plaintiff's knee revealed that she had only "very modest tenderness over the MCL." She had no erythema or swelling, and demonstrated full flexion and extension of her knee. Windham opined that Plaintiff's condition had improved and recommended that she continue with therapy. ([9] at 427.)

Plaintiff went to an appointment at the Hattiesburg Clinic on November 16, 2010, in regard to her previous DVT diagnosis. Plaintiff claimed that she still had some soreness, but Dr. Thomas S. Messer found that Plaintiff had no edema, and that an ultrasound revealed no blood clots. Dr. Messer opined that Plaintiff's DVT had resolved, but suggested that she continue taking Coumadin for another six months. ([9] at 425-26.)

On November 19, 2010, Plaintiff visited Marion General Hospital complaining of neck and upper back pain, as well as pain in her right thigh. An examination of her extremities showed no clubbing, cyanosis or edema. Plaintiff was told to continue her current medications and come back for a follow-up appointment. ([9] at 271.)

Plaintiff's records reflect that she completed five weeks of physical therapy for her right knee. At an examination on December 29, 2010, Plaintiff showed a full range of motion in the cervical and lumbar spine. No clubbing, cyanosis or edema was noted in her extremities. She had a steady stance and normal gait, and her MRIs were normal. Nurse Jessica Thomas and Plaintiff discussed a possible referral to the psychiatry department for trigger point injections[11] due to lingering pain in her back and neck. Thomas noted that she "really d[id] not have anything else to offer [the Plaintiff] at this point." ([9] at 413.)

Dr. Barbara S. Barnard examined Plaintiff on February 22, 2011. Plaintiff's chief complaint was neck and back pain. Dr. Barnard noted that Plaintiff's MRIs were normal, and stated that the Plaintiff's gait was tandem, her heel and toe walking intact, and her range of motion was within functional limits. She had full strength in her upper and lower extremities. Dr. Barnard diagnosed Plaintiff with myofascial pain[12] and gave her trigger point injections. ([9] at 407-09.)

On April 11, 2011, Plaintiff returned to the Hattiesburg Clinic and was examined by Dr. Barnard. Plaintiff stated that the trigger point injections did not help her pain, but nonetheless requested another treatment. Dr. Barnard stated that she was "just not comfortable injecting her" due to the fact that the injections did not help the first time. She also noted that an MRI of Plaintiff's neck was "completely normal, " and that Plaintiff denied any back pain. Dr. Barnard recommended that Plaintiff exercise regularly and attempt to get off her pain medication. She also ordered another x-ray of Plaintiff's thoracic spine, which showed normal alignment with no fracture or subluxation. Some mild degenerative changes were noted, but there was no significant focal disc space narrowing. The radiologist opined that Plaintiff had "only very mild degenerative changes with no acute finding." ([9] at 389-90.)

Also on April 11, 2011, State agency consultant Dr. Madena Gibson reviewed the record evidence and completed a Physical Residual Functional Capacity Assessment. Dr. Gibson determined that Plaintiff could occasionally lift or carry twenty pounds, could frequently lift or carry ten pounds, and could stand, walk and sit for about six hours in an eight-hour workday. She opined that Plaintiff could push and/or pull without limitation. Dr. Gibson then outlined the evidence supporting these conclusions, citing Plaintiff's neck and back pain and DVT diagnosis, but noting that the Plaintiff had no edema and had a steady stand and gait. ([9] at 358-59.) Dr. Gibson also opined that Plaintiff could climb, stoop, kneel and crawl occasionally. She determined that no manipulative, visual, or communicative limitations had been established, but that Plaintiff should avoid concentrated exposure to hazards such as machinery and heights. ([9] at 360-63.)

Plaintiff received an MRI of her thoracic spine on April 23, 2011. Dr. Geoffrey Hartwig opined that the MRI reflected abnormalities in the T11-T12 level and a ten percent wedge deformity at the T8 level. However, at a June 6, 2011 appointment, Dr. Barnard noted that it was hard for her "to even appreciate" that interpretation and that the MRI was otherwise normal. Dr. Barnard also examined Plaintiff's September 2010 MRI of her lumbar spine, and agreed that there was mild degenerate disc disease in the L5-S1 region. Dr. Barnard noted that Plaintiff was in no distress and had a normal tandem gait, as well as full strength in all extremities. Plaintiff had increased back pain upon extending and bending to the right side. ([9] at 365-66.)

Dr. Kevin Holmes completed a "Statement of Examining Physician" in regard to the Plaintiff sometime in September 2011. The handwriting on the document is barely legible, but appears to state moderate lumbago as Plaintiff's principle diagnosis, with moderate cervicalgia as a secondary diagnosis. The Plaintiff's restrictions include "no ...


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