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Sutherland v. Colvin

United States District Court, S.D. Indiana, Indianapolis Division

September 16, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          DAVID SUTHERLAND, Plaintiff, Pro Se.

          CAROLYN W. COLVIN, Defendant, represented by Kathryn E. Olivier, UNITED STATES ATTORNEY'S OFFICE.


          TANYA WALTON PRATT, District Judge.

         Plaintiff David Sutherland ("Sutherland") requests judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying his application for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"). For the following reasons, the Court AFFIRMS the decision of the Commissioner.

         I. BACKGROUND

         A. Procedural History

         On February 24, 2012, Sutherland filed applications for DIB and Supplemental Security Income ("SSI"), alleging a disability onset date of December 31, 2002. The SSI claim was denied on March 2, 2012, and the DIB claim was denied on March 29, 2012. Sutherland did not pursue the appeals process of these denials. However, on July 18, 2012, Sutherland filed another application for DIB only, again alleging a disability onset date of December 31, 2002, and complaining of back, neck, and leg pain, anxiety, depression, and obesity. His claims were initially denied on August 29, 2012, and again on reconsideration on October 18, 2012. Sutherland filed a written request for a hearing and on June 5, 2014, a hearing was held before Administrative Law Judge Ronald T. Jordan ("the ALJ"). Jennifer L. Carril, an impartial vocational expert, appeared and testified at the hearing. Sutherland was represented by counsel, Frank Hanley, II. On June 17, 2014, the ALJ denied Sutherland's application for DIB. Following this decision, Sutherland timely requested review by the Appeals Council. On May 12, 2015, the Appeals Council denied Sutherland's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. Thereafter, Sutherland filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         At the time of his alleged disability onset date, Sutherland was 48 years old, and he was 60 years old at the time of the ALJ's decision. Sutherland is now 62 years old. Sutherland completed his high school education. Prior to the onset of his alleged disability, Sutherland had an employment history of working as a real estate agent. He also spent time working at a restaurant that he and his wife co-owned. He continued working at the restaurant after the alleged disability onset date of December 31, 2002, until February 2010 when he was involved in an automobile accident. The business stopped running in December 2010 after it burned down. (Filing No. 10-6 at 10).

         Sutherland and his wife opened their restaurant in June 2001. He worked at the restaurant and made almost all of the management decisions, performed bookkeeping, and some physical activities (Filing No. 10-6 at 14). He worked at the restaurant approximately seventy hours per week, or two hundred eighty hours per month. Id. at 10. Sutherland's work included ordering supplies, checking in deliveries, unloading supplies, and socializing with customers (Filing No. 10-2 at 39; Filing No. 10-6 at 14). He frequently lifted one to two pounds and sometimes lifted ten to fifteen pounds (Filing No. 10-6 at 55).

         On October 15, 2001, Sutherland was approximately 5' 7" tall and weighed 320 pounds. Because of his morbid obesity, Sutherland underwent a Roux-en-Y gastric bypass surgery (Filing No. 10-7 at 33). In January 2002, approximately three months after the surgery, Sutherland weighed 253 pounds. In January 2004, Sutherland weighed 205 pounds, down 115 pounds from his weight before surgery. Id. In October 2007, Sutherland weighed 215 pounds. Id.

         Sutherland was experiencing weakness in his right quadriceps and iliopsoas, so he received an MRI of his pelvis on June 6, 2003. The MRI revealed mild degenerative changes at the L4-S1 levels of the spine. The MRI also revealed an anterior abdominal soft tissue mass, suggesting a possible umbilical hernia (Filing No. 10-7 at 56).

         Sutherland went to John T. Cummings, M.D. ("Dr. Cummings"), a neurosurgeon, to address the degenerative changes in his spine, which were manifested through back and neck pain. On July 17, 2003, Dr. Cummings performed a posterior lumbar interbody fusion at L4-L5 and L5-S1 to address Sutherland's degenerative changes (Filing No. 10-7 at 41).

         Sutherland returned to Dr. Cummings for a six-month follow-up appointment after the fusion surgery at L4-L5 and L5-S1. Dr. Cummings noted that Sutherland was not experiencing significant back pain at the time of the surgery but that he had been suffering from his right leg not supporting him and giving way, leading to falling down. At the time of the follow-up appointment, Dr. Cummings noted that Sutherland's leg was feeling fine and much stronger, with only an occasional fall, but Sutherland was now experiencing back pain at the end of each day. He was able to bend over to touch his toes, but extension caused his back to go into spasms. Dr. Cummings recorded that there was remodeling of the bone grafts, but the fusion did not appear to be solid. However, the instrumentation was in proper orientation. Dr. Cummings recommended that Sutherland add Soma to his medicine regimen to help with the back pain, and he also recommended that Sutherland start physical therapy (Filing No. 10-7 at 10).

         On January 15, 2004, a CT scan of Sutherland's abdomen was taken because he was experiencing abdominal pain. The CT scan revealed the presence of abdominal mesh, which was present because of two prior hernia surgeries, and the reviewing doctor suspected a prior Rouxen-Y gastric bypass surgery. Sutherland's organs looked unremarkable, and there was a small lesion on the liver, indicating a possible simple cyst (Filing No. 10-7 at 34).

         Because of back pain and Dr. Cummings' recommendation, Sutherland participated in physical therapy at Advanced Physical Therapy in Indianapolis, Indiana. He made improvements throughout his physical therapy sessions and partially met his goals. On February 16, 2004, at his eighth physical therapy session, Sutherland reported that his pain level was at a two on a scale from one to ten when he was at rest and at a six when he was performing activities. He was not able to bend to the right or left, and his range of motion with extension was limited to 60%; however, he was able to bend forward and touch the floor. Sutherland's treatment included hot and cold packs, electrical stimulation, and therapeutic exercise. The physical therapist noted that Sutherland was "overall improved, " with decreased endurance but increased exercise tolerance. The physical therapist also noted that Sutherland was able to perform his work duties with some pain, and he was "working full duty but with pain/difficulty." (Filing No. 10-7 at 4.)

         On November 17, 2004, Sutherland returned to Dr. Cummings for a one-year follow-up appointment after the fusion surgery at L4-L5 and L5-S1. Sutherland wore a leg brace to the appointment because his leg was giving out underneath him, leading to falling. His right quadriceps had some residual atrophy. Dr. Cummings noted that Sutherland was for the most part asymptomatic, and he was "working at his restaurant without limitations and he will have occasional back spasms. He has been taking some anti-inflammatories but otherwise has gotten along quite nicely." (Filing No. 10-7 at 9.) Sutherland's x-rays indicated excellent remodeling of the bone grafts, with some lucency around the bone graft despite the remodeling. Dr. Cummings opined that the fusion was solid and stated that Sutherland was doing well clinically. Id.

         Because of arthritis in his left knee, Sutherland underwent a total knee arthroplasty on August 8, 2006 (Filing No. 10-7 at 45). Sutherland continued suffering from neck, back, and leg pain in 2009 and 2010, so Dr. Cummings performed two additional surgeries to address the pain (Filing No. 10-8 at 98-99; Filing No. 10-8 at 103).

         Whenever Sutherland underwent a surgery, he would reduce his work load at the restaurant for a period of months during his recovery. However, he stopped working after he was involved in an automobile accident on February 4, 2010 (Filing No. 10-6 at 4, 10; Filing No. 10-8 at 100). Sutherland was stopped at a red light when somebody rear-ended him driving approximately thirty miles per hour. Sutherland hit his head on the steering wheel and was thrown backward. The accident resulted in numbness and weakness in Sutherland's left arm as well as neck pain and limited range of motion in his neck (Filing No. 10-8 at 100).

         Throughout 2010, 2011, and 2012, Sutherland continued to experience neck, back, and leg pain, and MRIs and x-rays revealed some stenosis, a bulging disk, and degenerative changes. He received spinal injections and narcotic pain medications to help control the pain. He began using a walker, and his gait was visibly abnormal.

         Sutherland began seeing a family physician, Mary Catherine Yoder, M.D. ("Dr. Yoder"). Dr. Yoder treated Sutherland for various complaints such as his neck and back pain and high blood pressure. His high blood pressure was effectively managed with medication, and Dr. Yoder noted throughout her treatment notes that Sutherland was receiving steroid injections for pain.

         In November 2010, Dr. Yoder noted that there were concerns that Sutherland's symptoms were out of range of his actual objective signs and that he was possibly suffering from a somatoform disorder as well as depression (Filing No. 10-8 at 71). On August 2, 2011, Dr. Yoder noted that Sutherland's back pain seemed to be getting a little better. Id. at 48. On January 13, 2012, Dr. Yoder updated Sutherland's medication for right hip pain and noted that he was doing much better and had full range of motion and no instability in his right hip. Id. at 39. At his office visit with Dr. Yoder on January 27, 2012, Sutherland's legs were doing better, his hip was doing well, and his balance was better. Dr. Yoder noted that Sutherland had spinal and cervical stenosis, but he seemed to be stable. Id. at 35. In October 2012, Sutherland reported having a lot of pain down his right leg with lower back and neck pain. He had decreased range of motion in his back. Id. at 27.

         To assist Sutherland in the DIB application process, Dr. Yoder completed a "medical statement of physical abilities/limitations for Social Security disability claim" on April 8, 2013 (Filing No. 10-7 at 64-65). Dr. Yoder reported that Sutherland had problems with balance and falling, had troubles with dropping items and lifting his arms above his heard, and had constant pain, which she rated as moderately severe. Dr. Yoder opined that Sutherland could rarely bend or stoop, raise his arms above his shoulder, and work near dangerous equipment. She opined that Sutherland could frequently lift five pounds and occasionally lift ten pounds. Dr. Yoder further opined that ...

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