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Fitch v. Colvin

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

June 16, 2015

MICHAEL FITCH, Surviving Spouse of Ellen Fitch, Deceased Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration Defendant.


MICHAEL T. PARKER, Magistrate Judge.

Plaintiff Michael Fitch ("Plaintiff"), on behalf of his deceased wife, Ellen Fitch ("Fitch"), brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security Administration denying Fitch's claim for disability insurance benefits and supplemental security income. The matter is now before the Court on the Plaintiff's Motion for Summary Judgment [8] and Defendant's Motion to Affirm the Commissioner's Decision [10]. Having considered the pleadings, the record, and the applicable law, the undersigned recommends that the Commissioner's decision be AFFIRMED.


On September 28, 2010, Fitch applied for disability insurance benefits and supplemental security income payments under the Social Security Act, alleging disability as of September 25, 2010, due to degenerative disc disease; problems with her neck, mid-back, and spine; and depression. (Administrative Record [6] at 103, 196.)[1] Fitch's claim was denied initially and upon reconsideration; thereafter, she requested a hearing before an Administrative Law Judge ("ALJ"). ([6] at 103-06, 123-25.) On May 1, 2012, a hearing was convened before ALJ Laurie H. Porciello. The ALJ heard testimony from Fitch and Donald Woodall, a vocational expert. ([6] at 58-90.) On September 5, 2012, the ALJ issued a decision finding that Fitch was not disabled. ([6] at 21-32.) On October 31, 2012, Fitch appealed the ALJ's decision. ([6] at 15-17.) On May 25, 2013, Fitch died, and her widower, Michael Fitch, continued the claim. ([6] at 12, 14.) On February 5, 2014, the Appeals Counsel denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. ([6] at 5-8.)

Aggrieved by the Commissioner's decision to deny benefits, Plaintiff filed a complaint in this Court on February 21, 2014, seeking an order granting benefits to Plaintiff. The Commissioner answered the complaint, denying that Plaintiff is entitled to any relief. The parties briefed the issues in this matter pursuant to the Court's Order [3], and the matter is now ripe for decision.


Fitch was forty-seven years old at the time of the hearing before the ALJ on May 1, 2012. ([6] at 63.) Her alleged disability onset date was September 25, 2010. ([6] at 103.) She earned a general equivalency diploma and had past work experience as a cashier, answering service operator, office clerk, waitress, quality control worker, and food service manager. ([6] at 64, 84, 196, 214-21.) According to Plaintiff, Fitch had a history of pain in her back and neck, degenerative disc disease, asthma, high blood pressure, fractured ankle, anxiety, depression, bipolar disorder, insomnia, suicide attempts, choking and swallowing problems, left sided numbness, ataxia, and urinary incontinence. (Brief [9] at 5-6.)

In March of 2006, Fitch was involved in a motor vehicle accident and, as a result, underwent an anterior fusion of her spine at the C6 and C7 vertabrae. During post-operation visits, medical professionals indicated that she was recovering well and referred her to a pain management physician. ([6] at 351-54.) At that time, her physician observed that "Ms. Fitch is doing remarkably well." ([6] at 354.)

In October and November of 2009, Fitch sought treatment from NewSouth NeuroSpine ("NewSouth"). ([6] at 247-52.) Fitch indicated that she developed neck pain in September of 2006 and lower back pain in October of 2007. ([6] at 247.) Fitch's treating physicians provided a transcutaneous electrical nerve stimulation ("TENS") unit and recommended physical therapy and pain medication injections. ([6] at 247-52.) On January 27, 2010, one of the physicians at NewSouth stated that Fitch "has overall been doing very well, has responded favorably to the physical therapy...." ([6] at 250.) There were, however, instances where Fitch indicated that she was experiencing sudden onsets of neck pain. ([6] at 375.) In May of 2010, after Fitch suffered a fall, a radiograph was taken of the lumbar region of her spine and a physician found very mild facet hypertrophy[2] and sclerosis[3] but found no evidence of spondylolysis.[4] ([6] at 271.)

On February 9, 2011, Dr. Andrew Yates performed a consultative examination on Fitch. ([6] at 320-22.) Dr. Yates observed that Fitch showed a decreased range of motion of her left shoulder but her remaining upper extremities and lower extremities showed a full range of motion. ([6] at 321.) She was unable to heel walk or toe walk. She used a cane for support but could walk without it. Dr. Yates's impressions were that Fitch had (1) cervical disc disease with radiculopathy, (2) degenerative disc disease of the lumbar spine with radiculopathy, (3) depression, and (4) hypertensive cardiovascular disease. ([6] at 322.)

In February of 2011, Dr. William Hand, a medical consultant, assessed Fitch's medical records. Dr. Hand found that Fitch could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk for 6 hours in an 8-hour day, and push/pull without limitation. ([6] at 325.)

Regarding Fitch's mental health and substance abuse history, the record indicates that, on September 29, 2010, Fitch overdosed on multiple drugs including Xanax and Soma. ([6] at 263.) Fitch also consumed alcohol. ([6] at 263.) Fitch reported being depressed and having suicidal thoughts. ([6] at 263.)

On October 8, 2010, Fitch again overdosed on Xanax. ([6] at 255.) Fitch received treatment from Region 8 Mental Health Center. During her treatment, Fitch was prescribed Abilify and Trazodone and, on November 1, 2010, she reported that the medications were "doing really well for her." ([6] at 300.) She also reported that she was controlling her alcohol consumption. ([6] at 300.)

On February 2, 2011, Dr. Lisa Yazdani performed a consultative examination of Fitch. ([6] at 313-16.) Fitch reported that she had a history of mental health treatment and reported that she had taken a lot of pills with alcohol in the past. ([6] at 314.) Dr. Yazdani observed that Fitch's mood was depressed and her affect was labile. Dr. Yazdani noted that there were no indications of hallucininations, delusions, obsessions, or compulsions. Also, there were no disturbances of memory. Dr. Yazdani's impressions were that Fitch suffered from bipolar disorder, panic disorder, and depression. ([6] at 315.) According to Dr. Yazdani, Fitch appeared capable of performing activities of daily living and routine, repetitive tasks. ([6] at 315.) Dr. Yazdani found that Fitch's ability to interact with co-workers and receive supervision appeared mildly to moderately diminished by her depression and her anxiety. ([6] at 315.)

In March of 2011, Dr. Glenda Scallorn, a medical consultant, assessed Fitch's mental health records. Dr. Scallorn found that Fitch had mild restrictions of activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and no episodes of decompensation. ([6] at 342.)


In Harrell v. Bowen, the Fifth Circuit detailed the shifting burden of proof that applies to disability determinations:

An individual applying for disability and SSI benefits bears the initial burden of proving that he is disabled for purposes of the Social Security Act. Once the claimant satisfies his initial burden, the [Commissioner] then bears the burden of establishing that the claimant is capable of performing substantial gainful activity and therefore, not disabled. In determining whether or not a claimant is capable of performing substantial gainful activity, the [Commissioner] utilizes a five-step sequential procedure set forth in 20 C.F.R. § 404.1520(b)-(f) (1988):
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings.
2. An individual who does not have a severe impairment' will not be found to be disabled.
3. An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without ...

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