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Tackett v. Colvin

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

February 16, 2017




         Plaintiff 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 [3], 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 [9] should be DENIED, the Commissioner's final decision should be AFFIRMED, and this action should be DISMISSED.


         On 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 [5] at 197-200; 229). Plaintiff's claim was denied initially and upon reconsideration. ([5] 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. ([5] at 79-106). On June 30, 2015, the ALJ issued a decision finding that Plaintiff was not disabled. ([5] 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. ([5] at 5-9). Plaintiff now seeks judicial review in this Court under 42 U.S.C. § 405(g).


         Plaintiff 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. ([5] at 197; 230).

         According 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.” ([5] at 330-31). An MRI taken on October 28, 2013, revealed (1) moderate spinal canal stenosis[1] 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. ([5] 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. ([5] at 327-28).

         On 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.” ([5] at 323-24). On November 12, 2013, a state agency medical consultant, Dr. William Hand, determined that Plaintiff had the capacity for light work. ([5] at 133-38).[2]

         On 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. ([5] 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. ([5] at 336).

         On January 30, 2014, Plaintiff's surgery had to be postponed until her high blood pressure was under control. ([5] at 343). On May 29, 2014, Dr. Smith performed surgery on Plaintiff. ([5] 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. ([5] at 300).

         Plaintiff 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. ([5] 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. ([5] at 301, 346). On November 19, 2014, Dr. Smith instructed Plaintiff to undergo physical therapy. ([5] 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.” ([5] at 302; 408-18).

         Plaintiff 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. ([5] at 396-97). Plaintiff went to six physical therapy sessions from February 24, 2015, to March 19, 2015. ([5] at 419-436).

         An 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.

([5] at 440-44).[3]


         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 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 be made.
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 performed.

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.


         The ALJ 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.[4] 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. ([5] at 20-21).

         The ALJ then examined the record and determined that Plaintiff had the residual functional capacity (“RFC”)[5] 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. ([5] at 22-27).

         STANDARD ...

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