United States District Court, S.D. Indiana, Indianapolis Division
SUTHERLAND, Plaintiff, Pro Se.
CAROLYN W. COLVIN, Defendant, represented by Kathryn E.
Olivier, UNITED STATES ATTORNEY'S OFFICE.
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, District Judge.
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.
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. Â§
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).
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).
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.
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).
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
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
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).
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.)
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.
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).
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).
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.
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.
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.
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 ...