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Fountain v. Berryhill

United States District Court, M.D. Georgia, Macon Division

January 11, 2018

TERYL ANTION FOUNTAIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

         Social Security Appeal

          REPORT AND RECOMMENDATION

          Charles H. Weigle, United States Magistrate Judge

         This is a review of a final decision of the Commissioner of Social Security denying Plaintiff Teryl Antion Fountain's application for benefits. Because the ALJ failed to consider whether Plaintiff was disabled for a closed period, it is RECOMMENDED that Plaintiff's case be REMANDED to the Commissioner for a reevaluation of the evidence.

         BACKGROUND

         Plaintiff applied for period of disability benefits, disability insurance benefits (“DIB”), and supplemental security income benefits (“SSI”) on October 16, 2012, alleging disability as of February 18, 2012, when Plaintiff was involved in a motor vehicle accident. (Doc. 15, p. 1). Plaintiff claims to have suffered, in particular, from severe lower back pain during the alleged period of disability. See (R. 196, 310). The record shows that, as early as March 2012, treating medical sources recommended that Plaintiff undergo a lumbar decompression and fusion surgery. See, e.g., (R. 196-99). That surgery did not occur until December 2014, (R. 286, 290), but the record suggests that when it occurred, it resulted in substantial improvement to Plaintiff's condition. See, e.g., (R. 226).

         The administrative law judge (“ALJ”) who reviewed Plaintiff's case placed great emphasis on Plaintiff's post-surgical improvement in finding that Plaintiff was not disabled within the meaning of the Social Security Act. The ALJ appears not to have adequately considered, however, whether Plaintiff was disabled for a closed period during the time prior to his post-surgical improvement. In this regard, the ALJ erred in failing to weigh the opinion of Dr. Syed Baber, a consulting physician whose opinion may support the conclusion that Plaintiff was disabled for a closed period prior to his post-surgical improvement. Accordingly, it is recommended that this case remanded to the Commissioner for a reevaluation of the evidence, and for a reassessment of whether Plaintiff is entitled to benefits for a closed period of disability.

         STANDARD OF REVIEW

         Judicial review of a decision of the Commissioner of Social Security is limited to a determination of whether that decision is supported by substantial evidence, as well as whether the Commissioner applied the correct legal standards. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence” is defined as “more than a scintilla, ” and as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. The Eleventh Circuit has explained that reviewing courts may not decide the facts anew, reweigh the evidence, or substitute their judgment for that of the Commissioner. Id. Rather, if the Commissioner's decision is supported by substantial evidence, the decision must be affirmed even if the evidence preponderates against it.

         EVALUATION OF DISABILITY

         Social Security claimants are “disabled” if they are unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations outline a five-step sequential evaluation process for determining whether a claimant is disabled: “(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of impairments; (4) based on a residual functional capacity (“RFC”) assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's RFC, age, education, and work experience.” Winschel, 631 F.3d at 1178 (11th Cir. 2011) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v)).

         MEDICAL RECORD

         In February 2012, Plaintiff sought treatment at the Coliseum Medical Center for severe lower back pain following a motor vehicle accident. (R. 179, 188). The record lists lumbar radiculopathy, disc lumbago, and a hip sprain as likely diagnoses. (R. 180). Plaintiff sat for a CT scan based on the possibility of a lumbar vertebra fracture, but the CT scan revealed “[n]o evidence of acute fracture, ” and instead showed mild disc bulging at the L3-4 and L5-S1 levels, as well as minimal spondylolisthesis at the L5-S1 level. (R. 185).

         Plaintiff's pain persisted, and in March 2012, based on the results of a lumbar-spine MRI, Dr. Hugh Smisson recommended a decompression and fusion procedure. (R. 196-99). That surgery, which Dr. Smisson performed, did not occur until December 2014. (R. 286, 290). In a pre-operation report, Dr. Smisson noted that Plaintiff was experiencing pain in ...


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