Bigelow v. Astrue et al

Filing 27

ORDER adopting 23 Report and Recommendations. Therefore, the Commissioner's final decision is affirmed, this civil action is closed and final judgment shall be entered in favor of the Commissioner. Signed by Judge Dudley H. Bowen on 5/9/13. (cmr)

OR
IGINAL

it

r i . ; .t ;r . ir"tt ; "l .U :t r , . . . . . ,
- .,
i \ U 3 ' r r ' -i' ! . ,
il
IN THE LTNITEDSTATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
GWENDOLYN D. BIGELOW (BURCH),

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i; i: i{,4Y Piit2:29

lqgx6C Mc.^,-=_
50.0tsi0ijGl
.

)

Plaintiff,

cv 312-035
CAROLYN W. COLVIN, Acting
Commissioner Social Security
of
Administration,
Defendant.

ORDER

After a careful, de novo reyiew of the frle, the Coud concurswith the Magistrate
("R&R"), to which objections
.Iudge's
Reportand Recommendation
havebeenfiled (doc.no.
25). ln her objections,PlaintilTreiterates argumentthat the Administrative Law Judge's
her
("ALJ") finding conceming
medicalimprovement ofSeptember 2002,wasnot supported
as
3,
by substantialevidence. (Id. at 4.) In particular, Plaintiff arguesthat, contrary to the
MagistrateJudge'shndings in the R&R, the ALJ failed to show good causeasto why he did
not assigngreat weight to the opinion of David M. Hunter, M.D., and that he additionally
fbiled to make a determinatron the weight that he did give to that opinion. [d. at 3.)
of
Lr the R&R, the MagistrateJudgeibund that the ALJ's determination
that therewas
medical improvementin Plaintifls condition such that she was no longer disabledas of
September
3,2002, was suppofied substantial
by
evidence. (Doc. no. 23, p. 16.) The
MagisfiateJudgenotedthat the ALJ, in arriving at his decision,addressed
Plaintiff s medical

with various doctors,including Dr. Hunter, in considerable
history and her appointments
detail. (Id. at 9, 14.) As to Dr. Hunter, the MagistrateJudgenoted the ALJ's hnding that,
manipulationprocedures
with Dr. Hunter on at leastthree
althoughPlaintiff had scheduled
Plaintiffthen postponed canceled
or
eachappointment hadyet to have
dilTerent
occasions,
and
(Id.at14.) Thus,theMagistrate
perlormed ofthe dateofthe ALJ's decision.
as
theprocedure
Judgefound that, to the extentPlaintiffarguedthat certainweight shouldhavebeengiven to
due
Dr. Hunter's "recommendation" to his role asa treatingorthopedist *'hich wasnot clear
from Plaintiff s original briefing, whereinPlaintiff madeno suchexplicit argument the ALJ
(Id.)
had showngood causeasto *hy he did not afford greatweight to that recommendation.
As notedabove,Plaintiffnolv argues
that the ALJ did not, in fact, show good causeasto his
decision to alford little weight to Dr. Hunter's recommendation,and did not make a
determinationas to what weight he would afford to it. (Doc. no. 25, p. 3.) In particular,
Plaintiff arguesthat her failure to follow through on her appointmentsfor manipulation
proceduresconstitutedan improper basis for the ALJ's allegeddecision to disregardDr.
Hunter's reports. (Id.)
Critically, a review ofthe medicalrecordsin this caseclearlyindicates
that Dr. Hunter
did not everopinethat Plaintiff"needed"manipulation
underanesthesia, Plaintiffprofesses.
as
Rather, Dr. Hunter simply agreed on a number of occasions,
due to Plaintiff s repeated
cancellations to schedule procedure response Plaintiff scomplaintsofpain andovert
the
in
to
requests manipulation. Tr. ("R."),pp.218-22,321-23.
for
See
Plaindffsuggests because
that,
a "cardjologist'sopinion that bypasssurgeryis needed"would still be affordedgreatweight
evenifthe patientdid not want the surgery,Dr. Hunter'sreportshereshouldalsobe afforded

(Doc. no.25, p.3.) Here,however,
greatweight,evengivenPlaintiff s repeated
cancellations.
that Plaintiff
it is not clear that Dr. Hunter evet "tecommended"manipulationin the sense
for
argues,
suchthat theALJ shouldhavereadDr. Hunter'sreportsasstanding theproposition
to
that the procedurervasparlicularly necessary the functionalityof Plaintiffs leg. In other
lbr
words,Dr. Hunter's simpleacquiescence Plaintiff srequest a procedure not analogous
to
is
a
to, for instance, cardiologist'sopfulorithatbypasssurgeryis requiredfor a patientto live, to
(doc.no.25, p.3). SeeLewisv, Callahan, F.3d 1436,1440
borrorvPlaintiffs example
125
(11tlr Cir. 1997) (noting that tlTe
lestimonyor opinion of a treatingphysicianmust be given
weight unless"good cause"is shown to the contrary)(emphasis
substantial considerable
or
added).Accordingly,the ALJ wasnot requiredto afford anyparticularweightto themerefact
that Dr. Hunter scheduled
multiple manipulationprocedures Plaintiff- all of which she
for
latercancelled uponher request,
especially the absence
in
ofany accompanying
opinion that
such procedure necessary.'
a
was
For the abovereasons,
Plaintilf s objections withoutmerit andareOVERRULED.
are
Accordingly,the Report and Recommendation the MagistrateJudgeis ADOPTED asthe
of
opinion of the Coul. Thereforethe Commissioner's
final decisionis AFFIRMED, this civil
actionis CLOSED, and a finaljudgment shall be ENTERED in favor of the Commissioner.

rAs noted above, the foregoing is furlher supported by
the fact that Plaintiff
conspicuously
failedto presentanyargument heroriginal briefing concemingDr. Hunter's
in
so-called"opinion" and insteadchoseto focus on the mere fact that Plaintiff visited Dr.
Hunter and rvas scheduled manipulationprocedures.(SSgdoc. no. 18, p. 20.)
for