Sutherland v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION as more fully set out thereon. Signed by Magistrate Judge Harwell G Davis, III on 5/12/2016. (AHI)

FILED
2016 May-12 PM 03:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

TOMMY LYNN SUTHERLAND,
Plaintiff
vs.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant

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) Case No. 6:15-cv-00239-HGD
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MEMORANDUM OPINION
Plaintiff, Tommy Lynn Sutherland, filed a Title II application for a period of
disability and disability insurance benefits, alleging disability beginning May 23,
2011. His claim was initially denied and he filed a request for a hearing before an
Administrative Law Judge (ALJ). That hearing was held on May 7,2014. Plaintiff
was represented by counsel. On September 26, 2014, ALJ Patrick R. Digby denied
plaintiff benefits finding that he was “not disabled” under the Social Security Act.
(Tr. 8, 11).

The Appeals Council denied plaintiff’s request for review on

December 17, 2014. (Tr. 1). Therefore, this case is ripe for review pursuant to 42
U.S.C. §§ 405(g) and 1383(c).

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I.

ALJ Decision
Disability under the Social Security Act is determined under a five-step test.

20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is
engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(I). “Substantial
work activity” is work that involves doing significant physical or mental activities.
20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is done for pay or
profit. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the
claimant has a medically determinable impairment or a combination of medical
impairments that significantly limits the claimant’s ability to perform basic work
activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such impairment, the claimant may
not claim disability. Id. Third, the ALJ must determine whether the claimant’s
impairment meets or medically equals the criteria listed in 20 C.F.R. § 404, Subpart P,
Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526. If such criteria
are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared
disabled under the third step, the ALJ may still find disability under the next two
steps of the analysis. The ALJ first must determine the claimant’s residual functional
capacity (RFC), which refers to the claimant’s ability to work despite his
impairments. 20 C.F.R. § 404.1520(e). In the fourth step, the ALJ determines
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whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past
relevant work, then the claimant is deemed not disabled. Id. If the ALJ finds that the
claimant is unable to perform past relevant work, then the analysis proceeds to the
fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v). In the last part of the analysis, the
ALJ must determine whether the claimant is able to perform any other work
commensurate with her RFC, age, education and work experience. 20 C.F.R.
§ 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove
the existence in significant numbers of jobs in the national economy that the claimant
can do given the RFC, age, education and work experience.

20 C.F.R.

§§ 404.1520(g) and 404.1560(c).
Following this five-step procedure, the ALJ found that plaintiff has the
following severe impairments: post open reduction of cervical fracture C3-7,
posterior fusion and status post C5 corpectomy, C4-6 fusion, anxiety, depression and
bipolar disorder. (Tr. 13). The ALJ also found that plaintiff’s condition 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. 20 C.F.R. §§ 404.1520(d), 404.1520(d), 404.1525. 404.1526,
416.920(d), 416.925 and 416.926. (Tr 13-14). The ALJ further found, based on the

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entire record, that plaintiff has the RFC to perform a modified range of light work.
(Tr. 18-19). Specifically, the ALJ found:
[T]he claimant can occasionally lift and/or carry twenty pounds and
frequently lift and/or carry ten pounds. The claimant is able to sit for 6
hours in an 8 hour workday with all customary breaks. The claimant can
stand and/or walk for six hours in an eight-hour workday with all
customary work breaks. The claimant has no [limitations] in the upper
and lower extremity for push/pull or use of foot controls up to the
twenty/ten pound lifting restriction. The claimant can occasionally
climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The
claimant cannot work on ladders, ropes, or scaffolds. The claimant
should not work around dangerous machinery or unprotected heights.
The claimant can frequently reach overhead bilaterally. The claimant is
able to learn and remember simple work and routines with practice. He
is able to understand and remember simple instructions but not detailed.
He is able to carry out simple instructions and sustain attention to
simple, routine, and familiar tasks for an eight-hour workday at twohour increments with all customary work breaks. The claimant would
work best with casual or occasional supervision and occasional prompts
to move from one sequential stage to the next. He would function best
with his own work area/station without close proximity with others. He
can tolerate ordinary work pressures, but should avoid excessive
workloads, quick decision making, rapid changes and multiple demands.
The claimant would benefit from regular rest breaks and a slowed pace,
but would still be able to maintain a work pace consistent with the
demands of competitive level of work. Any contact with the public
should be casual or occasional, non-intensive. Any feedback should be
supportive, tactful, and non-confrontational. Contact with coworkers
should be casual or occasional. He can adapt to infrequent, wellexplained changes. He may need help with planning and goal setting.
(Tr. 18-19). The ALJ found that plaintiff could not perform any past relevant work.
However, utilizing the testimony of a vocational expert (VE), the ALJ determined that

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there were jobs in the state and national economy that plaintiff could perform.
Therefore, he concluded that plaintiff was not disabled under the Social Security Act.
(Tr. 26).
II.

Plaintiff’s Argument for Reversal
Plaintiff asserts that the ALJ failed to properly apply the Eleventh Circuit Pain

Standard in determining whether plaintiff was disabled because he failed to properly
consider the effects of an accident suffered after his application was filed but about
two months before his hearing before the ALJ wherein he suffered a broken neck.
(Doc. 13, Plaintiff’s Brief, at 12-15).
III.

Standard of Review
Judicial review is limited to whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d
835, 838 (11th Cir. 1982), and whether the correct legal standards were applied. See
Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Chester v. Brown, 792 F.2d 129,
131 (11th Cir. 1986); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).
Title 42 U.S.C. § 405(g) mandates that the Commissioner’s findings are conclusive
if supported by “substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th
Cir. 1990). The district court may not reconsider the facts, re-evaluate the evidence,
or substitute its judgment for that of the Commissioner; instead, it must review the
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final decision as a whole and determine if the decision is reasonable and supported
by substantial evidence. See id. (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance
of evidence; “[i]t is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth,
703 F.2d at 1239) (other citations omitted). If supported by substantial evidence, the
Commissioner’s factual findings must be affirmed even if the evidence preponderates
against the Commissioner’s findings. See Martin, 894 F.2d at 1529. While the court
acknowledges that judicial review of the ALJ’s findings is limited in scope, the court
also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d at 701.
IV.

Discussion
Plaintiff was born in 1967 and was 46 years old at the time of his hearing. He

completed the eighth grade. (Tr. 36-37). For the last 20 years, he has been either
helping drive a truck or driving a truck. (Tr. 37). He suffered an on-the-job injury
for which he was awarded workmen’s compensation benefits. According to plaintiff,
when he was injured the first time, he received medical treatment that resulted in the
fusion of three levels of his neck. Plaintiff states that he has been on pain
management ever since and has not been released to go to work. (Tr. 45). He also
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claims that, as a result of this injury, he lost his commercial driver’s license (CDL)
because he could not pass the physical examination. (Tr. 57). He also testified that
he was injured in a second fall about two months before his hearing before the ALJ
and had further neck surgery. He testified that he was seeing Dr. Fernitti, a pain
clinic doctor, and Dr. Daniel Harmon for his second injury. (Tr. 56).
In reaching his determination that plaintiff was not disabled, the ALJ reviewed
medical records submitted on plaintiff’s behalf. The ALJ discussed plaintiff’s
treatment at Southern Orthopedic and Sports Medicine Associates, P.C., after his May
2011 injury. Dr. Jeffrey S. Cuomo, M.D., noted that plaintiff had mixed signal
protrusion of disc and spur at C3-4, C4-5 and C5-6. (Tr. 233). Plaintiff was referred
to Dr. Mark Prevost, M.D., who recommended that plaintiff undergo a three-level
anterior cervical diskectomy fusion. (Tr. 231). After undergoing this procedure,
descriptions of the fusion by Dr. Prevost ranged from “not a great fusion” (Tr. 227)
to “beautiful.” (Tr. 225, 226, 228, 229). Nonetheless, plaintiff continued to complain
about pain. Dr. Prevost sent plaintiff for a functional capacity examination which
found that he had a permanent impairment as a result of the fusion which was 45%
to his body as a whole. He recommended that plaintiff undergo pain management.
(Tr. 225).

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Plaintiff continued to complain about chronic pain throughout 2012, 2013 and
into 2014 when he was seen at the Winston County Medical Clinic. (Tr. 255, 266-69,
277, 284, 290, 335, 342, 345, 348, 351-52). In September and October 2013, he rated
the pain as 7 on a 1-10 scale. (Tr. 335, 342).
After filing for disability benefits, but before his hearing before the ALJ,
plaintiff, on or about March 13, 2014, further injured his neck in a fall in his home.
(Tr. 300). Examination by Dr. Kamal Ahuja, M.D., reflected that plaintiff suffered
anterior displacement of the C6 vertebral body on C7 as a result of a fracture along
the inferior aspect of C6, which is itself at the inferior aspect of his previous C3-C6
fusion. According to Dr. Ahuja, this injury involved the pedicle and laminar region.
He stated that the C5 facets were jumped and looked anterior to C6 facets. He also
noted that there was central canal compromise present and spinal cord injury was
likely. Plaintiff was sent for Halo placement and traction for closed reduction of his
fracture. It was noted that he would need surgery. (Tr. 302-03).
Surgery was performed on plaintiff resulting in both posterior and anterior
fixation of the fracture area. (Tr. 308). For a couple of days after this surgery, it was
noted that plaintiff tried to hit an R.N., kicked the bed rails and swung his arms
around. He was also described as “very confused and unable to communicate.”
Records reflect that plaintiff was heavily sedated at this time with morphine
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injections, hydromorphone and oxycodone. After a few days, plaintiff became much
more cooperative. (Tr. 311-330).
However, after his release from the hospital, plaintiff continued to experience
pain. He testified that his pain is now regularly a 9 on a scale of 1-to-10. (Tr. 46, 47).
He testified that he is taking pain medication every day and, in spite of this he still
hurts and his hands are numb with tingling extending all the way up to his neck. (Tr.
46). He also testified that he has difficulty gripping things and that it is hard for him
to eat. He has to have help taking a bath or a shower and consequently sometimes
goes two weeks without a bath. (Tr. 50).
The ALJ reached his determination regarding plaintiff’s lack of disability based
on physical examinations, consultative examinations, a functional capacity
examination, plaintiff’s activities of daily living and other evidence which was almost
exclusively limited to his condition before the second accident. There are only two
short references to this accident despite the fact that it was clearly a very serious
event. In the first, the ALJ states that notes on March 20, 2014, give plaintiff’s
prognosis as “excellent.” However, this is only one week after the accident and less
than that since the surgery was performed which repaired the neck fracture. The ALJ
also states that “[i]nterestingly, although the claimant complains of severe body pain,
he exhibited no limitations at the hospital as he kicked the bed rails and swung his
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arms.” (Tr. 22). Given the fact that these incidents occurred within a day or so after
his surgery while he was heavily drugged with hydromorphone, morphine injections
and hydrocodone, these actions are hardly evidence that plaintiff did not suffer
debilitating and painful damage as a result of the second accident.
The second mention of the March 2014 accident by the ALJ refers to it as
“additional surgery.” The ALJ again notes that plaintiff’s prognosis shortly after
surgery was “excellent,” but this time without also noting that the prognosis occurred
immediately after the surgery and before the injury had any time to heal. (Tr. 24).
The ALJ also stated that “[t]here is no indication and no evidence that such additional
surgery will last for twelve months or that his limitations are more than those opined
[by] the examining sources and Dr. Estock in his residual functional capacity.” (Tr.
24). However, this is simply not correct. Plaintiff testified that he suffered pain
continuously since his first injury in 2011, up to a 7 on a scale of 1-to-10. After the
second accident, he testified that he continues to suffer pain, now a 9 on the 1-to-10
scale. If the ALJ had questions regarding whether the effects of this accident would
last more than 12 months, he could have required plaintiff to undergo further
examination by a consultative expert.
The ALJ also rejected plaintiff’s claim of disabling symptoms in part due to his
failure to seek medical care for significant periods. This also is not borne out by the
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evidence. There are records of repeated visits to doctors by plaintiff after his 2011
accident, cited above, most involving complaints of neck pain. Likewise, the ALJ
stated that plaintiff still retains a commercial driver’s license and drives. Plaintiff
testified that he lost his CDL because he could not pass the physical. He also states
that he cannot drive anymore and only drove one time after the 2014 accident. That
one occasion caused him to get “in trouble” for which he has to “go to court.” (Tr.
52).
In addition, the ALJ stated that plaintiff was not compliant with all medical
advice in that he was advised in June 2013 to seek pain management, but did not do
so. (Tr. 225). However, records from the Winston County Medical Clinic in the
following month of August 2013 reflect that plaintiff was taking pain medication for
chronic pain which was helpful in reducing the level of his pain. (Tr. 290). The ALJ
also asserted that plaintiff was not taking pain medication in 2013 when he had
treatment at the Winston County Medical Clinic. (Tr. 20). This claim is misleading,
at best. The records from the Winston County Medical Clinic (Ex. 5F) reflect that
plaintiff was repeatedly prescribed Flexeril and Percocet for pain. On one occasion,
June 13, 2013, the record states that plaintiff was “not taking any meds at this time.”
However, it is unclear from this one sentence whether that meant he simply did not
take any medication before his doctor’s visit on that day, or was not taking them at

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all. However, it appears that it was the former, rather than the latter, given that the
very same medical record reflects that plaintiff’s current medications included both
Flexeril and Percocet. (Tr. 284).
When a claimant attempts to establish disability through his own testimony
about his subjective symptoms, a three-part “pain standard” applies. Wilson v.
Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). The pain standard requires:
“(1) evidence of an underlying medical condition; and (2) either (a) objective medical
evidence confirming the severity of the alleged pain; or (b) that the objectively
determined medical condition can reasonably be expected to give rise to the claimed
pain.” Id. If the ALJ determined that the claimant has a medically determinable
impairment that could reasonably be expected to produce the pain or other symptoms,
then the ALJ evaluates the extent to which the intensity and persistence of those
symptoms limit his ability to work. 20 C.F.R. § 404.1529(b). At this stage, the ALJ
considers the claimant’s history, the medical signs and laboratory findings, the
claimant’s statements, statements by treating and non-treating physicians, and other
evidence of how the pain affects the claimant’s daily activities and ability to work.
Id. § 404.1529(a).
A claimant’s testimony supported by medical evidence that satisfies the pain
standard is sufficient to support a finding of disability. Foote v. Chater, 67 F.3d

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1553, 1561 (11th Cir. 1995). If the ALJ decides not to credit a claimant’s testimony
about his symptoms, the ALJ “must articulate explicit and adequate reasons for doing
so. Failure to articulate the reasons for discrediting subjective pain testimony
requires . . . that the testimony be accepted as true.” Id. at 1561-62.
The second accident occurred after plaintiff applied for disability based on his
first accident and broken neck, but before the hearing before the ALJ. In fact, the
hearing before the ALJ was less than two months after plaintiff suffered his second
broken neck. The ALJ failed to properly apply the pain standard by considering the
effects of plaintiff’s 2014 accident on his functional abilities. For instance, the
Function Report, which reflected that he had no problems independently handling his
personal care needs, was completed on August 19, 2013, well before the second
accident, and it is contradicted by plaintiff’s testimony regarding his post-second
accident abilities. As noted above, the ALJ also based his determination on alleged
facts that are not supported by the evidence.
According to Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253 (11th Cir.
2007):
With a few exceptions, the claimant is allowed to present new
evidence at each stage of this administrative process. See 20 C.F.R.
§ 404.900(b). The Appeals Council must consider new, material, and
chronologically relevant evidence and must review the case if “the
administrative law judge’s action, findings, or conclusion is contrary to
theweightoftheevidencecurrentlyofrecord.” Id.§404.970(b). Theclaim m seekreviewinafederalcourtof“ finaldecision
ant ay
any
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of the Commissioner of Social Security,” 42 U.S.C. § 405(g), only after exhausting
these administrative remedies. See Sims v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080,
2083, 147 L.Ed.2d 80 (2000) (claimant must appeal to Appeals Council to exhaust
remedies).
Section 405(g) permits a district court to remand an application
for benefits to the Commissioner, who was denominated “the Secretary”
in the original statute, by two methods, which are commonly
denominated “sentence four remands” and “sentence six remands,” each
of which remedies a separate problem. The fourth sentence of section
405(g) provides the federal court “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” The sixth sentence of
section 405(g) provides a federal court the power to remand the
application for benefits to the Commissioner for the taking of additional
evidence upon a showing “that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding.”
When a case is remanded, “the Appeals Council, acting on behalf
of the Commissioner, may make a decision, or it may remand the case
to an administrative law judge with instructions to take action and issue
a decision or return the case to the Appeals Council with a
recommended decision.” 20 C.F.R. § 404.983. If the case is remanded
by the Appeals Council to the administrative law judge, the process
starts over again. Id. § 404.984. If the case is decided by the Appeals
Council, then that decision is subject to judicial review. Id.
Id. at 1261.
In this case, the Court believes that the new evidence regarding plaintiff’s
second accident needs to be considered by the Commissioner, including appropriate
application of the pain standard and correct application of the actual facts to the
determination of disability. Because the accident occurred so near in time to the
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actual hearing by the ALJ, there was insufficient time to make a determination of
whether the healing process was sufficient to render plaintiff not disabled. Based on
this, the Court finds that there is new evidence which is material and good cause for
the failure to incorporate such evidence into the record in a prior proceeding. Further
medical or other appropriate examination may be necessary to allow the ALJ to
render a valid determination.
V.

Conclusion
Based on the foregoing, the determination of the ALJ was not based on

substantial evidence. The Court further finds that remand to the Commissioner is
appropriate under sentence four of § 405(g) in order to obtain further medical
opinions or information and to take further testimony regarding any effect the
plaintiff’s March 2014 accident may have had on his claim for disability benefits.
Therefore, the decision of the Commissioner is due to be REVERSED and
REMANDED as directed. A separate order will be entered.
DONE this 12th day of May, 2016.

HARWELL G. DAVIS, III
UNITED STATES MAGISTRATE JUDGE

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