United States District Court, S.D. Mississippi, Southern Division
OPINION AND ORDER
MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE.
Renaee Tackett 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
her claim for disability insurance benefits. The parties have
briefed the issues in this matter in accordance with the
Court's Scheduling Order , and the matter is now ripe
for decision. After reviewing the parties' submissions,
the record, and the applicable law, the Court finds that the
Plaintiff's Motion for Judgment on the Pleadings 
should be DENIED, the Commissioner's final decision
should be AFFIRMED, and this action should be DISMISSED.
September 10, 2013, Plaintiff applied for disability
insurance benefits, alleging disability beginning on July 18,
2013, due to sciatica, back pain, and hypertension.
(Administrative Record  at 197-200; 229). Plaintiff's
claim was denied initially and upon reconsideration. ( at
133-38; 147-53). Thereafter, she requested a hearing before
an Administrative Law Judge (“ALJ”), and on March
19, 2015, an ALJ held a hearing, during which Plaintiff and a
vocational expert testified. ( at 79-106). On June 30,
2015, the ALJ issued a decision finding that Plaintiff was
not disabled. ( at 17-27). Plaintiff appealed the
ALJ's decision to the Appeals Council, and on March 31,
2016, it denied Plaintiff's request for review, rendering
the ALJ's decision the final decision of the
Commissioner. ( at 5-9). Plaintiff now seeks judicial
review in this Court under 42 U.S.C. § 405(g).
OF THE FACTUAL AND MEDICAL HISTORY
was fifty-two years old at the time of her alleged disability
onset date. She has a ninth-grade education and has past work
experience as a fast food restaurant manager, caretaker,
poultry production worker, and janitor. ( at 197; 230).
to Plaintiff, she began to experience lower back pain in
July, 2013. Plaintiff alleges that in August, 2013, she went
to the emergency room, where physicians diagnosed her with
sciatica and advised her to see a neurosurgeon. On October
15, 2013, Plaintiff saw a neurosurgeon, Dr. Terry Smith. Dr.
Smith prescribed her a pain medication and noted that it was
“[h]ard to know what to do without MRI.” ( at
330-31). An MRI taken on October 28, 2013, revealed (1)
moderate spinal canal stenosis involving T12/L1 and L2/L3; (2)
mild spinal canal stenosis involving L1/L2, L4/L5 and L5/S1;
and (3) multilevel mild to moderate neural foraminal
stenosis. ( at 318-19). On November 5, 2013, Plaintiff
again saw Dr. Smith who noted that he reviewed the MRI films
with Plaintiff and offered her the options of surgery,
physical therapy, or injections. At that time, Plaintiff
opted for physical therapy. ( at 327-28).
November 8, 2013, the Office of Disability Determination
Services sent Dr. Smith a disability report form, to which
Dr. Smith replied that Plaintiff was not disabled and
“had been offered surgery that has 90% success rate and
refused.” ( at 323-24). On November 12, 2013, a
state agency medical consultant, Dr. William Hand, determined
that Plaintiff had the capacity for light work. ( at
December 24, 2013, Plaintiff saw Dr. Smith, complaining that
her pain was getting worse. Dr. Smith noted that physical
therapy had not occurred. Plaintiff and Dr. Smith discussed
her stenosis, and she elected to have surgery. ( at
324-25). The Office of Disability Determination Services
again sent Dr. Smith a disability report form on January 21,
2014, and Dr. Smith again replied that he did not find
Plaintiff to be disabled. He referenced the ninety-percent
success rate of her scheduled surgery and stated that he
expected her to be able to return to work within six to eight
weeks of the surgery. ( at 336).
January 30, 2014, Plaintiff's surgery had to be postponed
until her high blood pressure was under control. ( at
343). On May 29, 2014, Dr. Smith performed surgery on
Plaintiff. ( at 352). According to Plaintiff, she saw Dr.
Smith for follow-up visits in June and July of 2014 and Dr.
Smith released her to return to work with certain
restrictions, including lifting no more than thirty pounds
and wearing a back brace. ( at 300).
returned to work as a manager of a fast food restaurant on
August 2, 2014, but Plaintiff allegedly began experiencing an
exacerbation of her back pain. On October 19, 2014, Plaintiff
was allegedly terminated after she missed work on multiple
occasions. ( at 300-01). On November 13, 2014, Plaintiff
went to the emergency room, where she was diagnosed with back
pain and degenerative joint disease of lumbar spine. ( at
301, 346). On November 19, 2014, Dr. Smith instructed
Plaintiff to undergo physical therapy. ( at 302).
Plaintiff went to three physical therapy sessions in
December, 2014, but had to cancel additional appointments
because she had “no money for gas, no ride.” (
at 302; 408-18).
returned to Dr. Smith's office on February 10, 2015,
complaining that the pain she was experiencing differed from
what she felt prior to the surgery. Dr. Smith instructed
Plaintiff to continue physical therapy and recommended an MRI
to determine if there had been any change in her lumbar
spine. ( at 396-97). Plaintiff went to six physical
therapy sessions from February 24, 2015, to March 19, 2015.
( at 419-436).
additional MRI was taken on April 9, 2015, and five days
later, Plaintiff saw Dr. Smith, who noted the following:
MRI of the lumbar spine was reviewed with the patient and
looks good; she has the usual post-op scar, nothing causing
nerve compression. Not much more to do at this point. Her
thoughts today were focused on getting a copy of her medical
records to send to the lawyer helping her get disability.
( at 440-44).
Harrell v. Bowen, the Fifth Circuit detailed the
shifting burden of proof that applies to disability
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
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 consideration of vocational factors.
4. If an individual is capable of performing the work he has
done in the past, a finding of ‘not disabled' must
5. If an individual's impairment precludes him from
performing his past work, other factors including age,
education, past work experience, and residual functional
capacity must be considered to determine if other work can be
862 F.2d 471, 475 (5th Cir. 1988) (citations and footnotes
omitted). A finding that a claimant “is disabled or not
disabled at any point in the five-step process is conclusive
and terminates the . . . analysis.” Id.
LAW JUDGE'S ANALYSIS
held a hearing in this matter and, upon applying the
five-step sequential analysis described above, rendered a
decision that Plaintiff was not disabled. At step one, the
ALJ found that Plaintiff had not engaged in substantial
gainful activity since July 18, 2013, her alleged disability
onset date. At step two, the ALJ found that Plaintiff
had the following severe impairments: degenerative disc
disease, hypertension, and obesity. At step three, the ALJ
found that these impairments did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. ( at 20-21).
then examined the record and determined that Plaintiff had
the residual functional capacity
(“RFC”) to “perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except she can occasionally
climb, stoop, kneel, crouch and crawl; and should have no
exposure to unprotected heights or hazardous
machinery.” The ALJ went on to determine at step four
that Plaintiff could not perform any past relevant work, but
found at step five that jobs existed in significant numbers
in the national economy that she could perform. Accordingly,
the ALJ found that Plaintiff was not disabled. ( at