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Fitch v. Colvin

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

July 15, 2015

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


KEITH STARRETT, District Judge.

This cause is before the Court on the Complaint [ECF No. 1] filed by Michael Fitch ("Plaintiff"), surviving spouse of Ellen Fitch ("Fitch"), appealing the final decision of the Social Security Commissioner denying Fitch's application for Social Security disability insurance. See Compl., ECF No. 1. The Commissioner has filed a response to appellant's brief [ECF No. 5] and now moves to affirm the decisions to deny benefits [ECF No. 10]. Magistrate Judge Michael T. Parker has entered a Report and Recommendation [ECF No. 13] recommending that the final decision of the Commissioner be affirmed. Plaintiff filed an objection [ECF No. 14] to the Magistrate Judge's Report and Recommendation. The Court has considered the pleadings of Fitch, the Commissioner, the record, and the Report and Recommendation of Magistrate Judge Parker and for the reasons below does hereby adopt the Report and Recommendation [ECF No. 13] as the opinion of this Court. Accordingly, Plaintiff's Motion for Summary Judgment [ECF No. 8] is denied, Commissioner's Motion to Affirm [ECF No. 10] is granted, and this matter is dismissed with prejudice.


In March of 2006 Fitch was involved in a motor vehicle accident. As a result, she underwent an anterior cervical discectomy and fusion for a fracture/dislocation at C6 and C7 vertebrae in her spine. Administrative R., ECF No. 6 at 353.[1] During post-operation appointments, Fitch's surgeon Dr. Garber referred Fitch to a pain management physician and noted that Fitch was "doing remarkably well." Id. at 351-54.

In October and November of 2009, Fitch sought treatment from NewSouth NeuroSpine ("NewSouth"). Id. at 247-52. Fitch indicated she developed neck pain in September of 2006 and lower back pain in October of 2007. Id. at 247. Fitch's treating physicians provided a transcutaneous electrical nerve stimulation ("TENS") unit and recommended physical therapy. Id. at 248-52. On January 27, 2010, one of the physicians at NewSouth stated Fitch "has overall been doing very well [and] has responded favorably to the physical therapy...." Id. at 250. In May of 2010, after suffering from a fall, a radiograph was taken of the lumbar region of Fitch's spine. The physician found very mild facet hypertrophy[2]and sclerosis[3] but found no evidence of spondylolysis.[4] Id. at 271.

On February 9, 2011, Dr. Andrew Yates performed a consultative examination on Fitch. Id. at 320-22. Dr. Yates observed that Fitch showed a decreased range of motion in her left shoulder, but her remaining upper extremities and lower extremities showed a full range of motion. Id. at 321. Additionally, Fitch used a cane for support but could walk without it. Id. at 320. 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. Id. at 322.

On February 24, 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. Id. at 325.

On November 13, 2012, Dr. Kevin McCarthy performed a clinical physical examination of Fitch and reported Fitch to be "a pleasant, well developed, well nourished 47 [year old] female." Id. at 379. Dr. McCarthy also examined Fitch's strength in both her upper and lower extremities and did not find any abnormalities. Id. at 379-80.

Regarding Fitch's mental health and substance abuse, on September 29, 2010, Fitch overdosed on Xanax and Soma while having consumed alcohol. Id. at 263. Fitch reported being depressed and having suicidal thoughts. Id. at 263. Fitch received treatment for her substance abuse from Region 8 Mental Health Center. Id. at 301. During her treatment, Fitch was prescribed Abilify and Trazodone. Id. at 302. About a month later, Fitch stated the medications were "doing really well for her" and that she was controlling her alcohol consumption. Id. at 300. In May and November of 2011, physicians at Region 8 Mental Health Center reported Fitch's mental status as "unremarkable" and "fairly well." Id. at 363-64.

On February 2, 2011, Dr. Lisa Yazdani performed a consultative examination of Fitch. Id. 313-15. Fitch reported that she had a history of mental health treatment and that she had taken a lot of pills with alcohol in the past. Id. at 314. Dr. Yazdani observed that Fitch's "mood was depressed and her affect was liable...." Additionally, Dr. Yazdani found "no indications of hallucinations, delusions, obsessions, or compulsions" and "no disturbanes of memory noted." Id. at 315. Dr. Yazdani's impressions were that Fitch suffered from bipolar disorder, panic disorder, and depressions. Id. at 315. However, according to Dr. Yazdani, Fitch "appeared to be functioning in the average range of intellect" and "capable of performing activities of daily living and routine, repetitive tasks." Id. at 315. Furthermore, Dr. Yazdani found that Fitch's "ability to interact with co-workers and receive supervision appear[ed] mildly to moderately diminished by her depression and anxiety...." Id. 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. Id. at 342.

On September 28, 2010, Fitch applied for disability insurance benefits and supplemental security income payments under the Social Security Act. Fitch alleged disability as of September 25, 2010, due to depression, degenerative disc disease, and problems with her neck, mid-back, and spine. Id. at 103; 196. Fitch's claim was denied initially and upon reconsideration; thereafter, Fitch requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 103-06; 123-25. On May 1, 2012, a hearing was convened before ALJ Laurie H. Porciello. On September 5, 2012, the ALJ issued a decision finding that Fitch was not disabled. Id. at 21-32. On October 31, 2012, Fitch appealed the ALJ's decision. Id. at 15-17. On May 25, 2013, Fitch died, and her widower, Michael Fitch, continued the claim. Id. 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. Id. at 5-8.

Aggrieved by the Commissioner's decision to deny benefits, Plaintiff filed a complaint [ECF No. 1] in this Court seeking an order granting benefits to Plaintiff. The Commissioner answered the complaint [ECF No. 5] denying that Plaintiff is entitled to any relief and ...

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