Newman v. Colvin
Filing
31
OPINION AND ORDER: The ALJ's decision denying benefits is REVERSED and this cause is REMANDED for further proceedings consistent with this Opinion and Order. Signed by Chief Judge Philip P Simon on 9/29/2016. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
BRIAN NEWMAN,
Plaintiff,
vs.
CAROLYN COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.
)
)
)
)
) CAUSE NO. 3:15-CV-247-PPS-JEM
)
)
)
)
)
OPINION AND ORDER
Plaintiff Brian Newman appeals the Social Security Administration’s decision to
deny his application for disability insurance benefits and supplemental security income.
An administrative law judge found that Newman was not disabled within the meaning
of the Social Security Act. Newman raises a number of challenges to this determination
including that the ALJ erred by not affording controlling weight to Newman’s treating
physician. Because I agree that the ALJ improperly weighed the medical evidence, I
will reverse the ALJ’s decision and remand on this issue.
Background
Newman was 41 years old at the time of his hearing. [DE 12 at 41.]1 He was 5’8”
and weighed 207 pounds, and he was living with his wife and two children at the time.
[Id. at 41, 60.] He and his family were on food stamps and his children were on
1
The administrative record is found in the court record at docket entry 12, and consists of 667
pages. I will cite to its pages according to the Court’s Electronic Case Filing page number, rather than by
the Social Security Administration’s Bates stamp numbers, which don’t begin until page 6 of 667 as the
pages are enumerated in ECF.
Medicaid. [Id. at 42, 53]. He testified that he does not drive due to poor reflexes that
have caused him to get into accidents in the past. [Id. at 42-43.] He also testified that he
completed the 12th grade and was currently taking college classes through Ivy Tech;
most of the classes were online. [Id. at 43.] At the time of the hearing, Newman had
completed between six and nine credit hours, had taken a computer class and an
introduction to business class, was currently taking an algebra class, and started an
online accounting class but withdrew because he was having problems with that class.
[Id. at 43-44.]
Newman wants to work. About a week before the hearing, he began working at
McDonald’s as a cook. [DE 12 at 65-66.] And, in fact, he has a substantial, albeit largely
unsuccessful, work history. Over the years he has worked as a welding machine
tender, a mobile home assembler, a car assembler, and a retail stocker and cashier. [DE
12 at 28.] Newman testified that during his recent approximately six months of
employment with Walmart, he had to switch from a stocking job to a cashier job
because he was having trouble keeping up due to the “Multiple Sclerosis (MS) in my
hands.” [Id. at 51-52.] He quit the Walmart job to find something closer to home, and
he later found work at a Dollar General. Newman worked as a stocker and cashier for
Dollar General but because he could not keep up with the pace of the work, his “hours
were cut significantly” and with so few hours it was hard to provide for his family. [Id.
2
at 52-53.] So he left and took a job at McDonald’s. It is therefore plain from the record
that Newman wants to work. The issue is whether he is able to.
Newman filed an application for disability insurance benefits and for
supplemental security income alleging that the disability onset date was the day before
he filed the application. [DE 12 at 15.] A video hearing was eventually held before an
ALJ, who later denied benefits in a written opinion. [DE 12 at 12-33].
Newman has a number of medical problems that he suffers from. At the hearing,
Newman testified along with a vocational expert. Newman testified that he has MS and
that the MS causes tightness and numbness in his hands and fingers, which prevents
him from doing any type of industrial work because he can only go so fast with his
hands. [DE 12 at 54.] He said that the tightness in his hands is constant—it doesn’t get
better or worse—and that he has taken medications that prevent the tightness from
getting worse. [Id. at 55.] He testified that he has trouble lifting heavy objects, such as
cases holding several containers of liquid detergents, but is able to lift a gallon of milk
and maybe something a little heavier if he is careful. [Id. at 56-57, 63.] Newman said
that after a three-hour shift at McDonald’s, his hands are very tight and his productivity
slows the longer the shift lasts. [Id. at 69.]
Newman testified that he also has a knee injury, specifically a meniscal tear and
ACL reconstruction, which causes him to collapse on occasion and have difficulties
walking and standing for long periods of time. [Id. at 54, 57-62, 64.] He said that
3
sometimes he has trouble standing for long periods of time because of the MS and
experiences weakness in the legs when walking. [Id. at 62.] He does not use a cane or a
walker. [Id. at 65.]
Newman also suffers from a form of autism known as Asperger syndrome which
makes social interaction difficult for those afflicted. Newman also is bipolar, for which
he takes medication. [Id. at 54-55, 61.] He explained that being bipolar causes him to
catch on slower than the average person when learning a job and that he has problems
accepting criticism for things he does incorrectly at work. [Id. at 55.] He also testified
that he tends to withdraw and sometimes be non-productive. [Id.] Newman said that
while he has had issues with depression and even contemplated suicide, he was not
currently having any problems. [Id. at 72.]
The ALJ found that Newman met the insured status requirements of the Social
Security Act and that he has not engaged in substantial gainful activity since September
26, 2011, the alleged onset date. [Id. at 17.] At Step Two, the ALJ concluded that
Newman has the following severe impairments: lumbar and cervical radiculopathy,
multiple sclerosis, Asperger’s disorder/pervasive developmental disorder, anxiety
disorder, and major depressive disorder. [Id. at 18.] At Step Three, the ALJ determined
that Newman’s impairments do not meet or medically equal the severity of one of the
listed impairments. [Id.]
4
At Step Four, the ALJ found that Newman has the residual functional capacity to
perform light work as defined in 20 C.F.R. 404.1567(b). Here is Newman’s RFC as
determined by the ALJ:
He can occasionally crouch, crawl and climb ramps or stairs, as
well as frequently kneel, balance, bend and stoop, beyond
what is required to sit. He cannot climb ladders, ropes or
scaffolds. The claimant can frequently, but not constantly, use
his hands for fine and gross manipulation. He is limited to
simple, routine and repetitive tasks and can maintain the
concentration necessary to perform simple tasks and simple
work-like procedures. He is limited to superficial interaction
with coworkers, involving prolonged conversation. Contact
with supervisors can involve necessary instructions. He is also
limited to low stress work, defined as only occasional decision
making and only occasional changes in the work setting. He
can tolerate predictable changes in the work environment. The
claimant can meet the production requirement in an
environment that allows him to sustain a flexible and goaloriented pace, but cannot perform fast-paced work such as
assembly line production work, with rigid or strict production
requirements.
[Id. at 20-21 (emphasis added).]
In the above RFC, I have highlighted the phrase that Newman can
“frequently” use his hands for fine manipulation because it is critical to this case.
This is because the vocational expert testified that given Newman’s assigned
RFC, there are jobs that exist in significant numbers in the national economy that
Newman can perform. [Id. at 27-28.] But if Newman was limited to less than
occasional fine fingering and gross manipulation, then the vocational expert
“would eliminate all jobs.” [Id. at 80.] Newman’s treating neurologist, Dr. Vidic,
5
believed that Newman was far more limited in his hand manipulation ability
than the ALJ believed him to be. But the ALJ rejected Dr. Vidic’s opinion in this
regard. So the issue is whether the RFC assigned by the ALJ relating to
Newman’s ability to “frequently” use his hands is supported by substantial
evidence.
DISCUSSION
In evaluating Newman’s arguments as to how the ALJ erred, I must keep in
mind that judicial review of the Commissioner’s decision is limited. If an ALJ’s findings
of fact are supported by “substantial evidence,” then they must be sustained. See 42
U.S.C. § 405(g); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Newman argues that the ALJ improperly discounted Newman’s treating
neurologist’s opinion because the ALJ did not offer good reasons for rejecting
Newman’s manipulative limitations and did not consider all of the factors for giving
weight to a treating physician’s opinion. [DE 21 at 15-18.] I agree that the ALJ’s
decision to discount Newman’s treating physician’s opinion was not supported by
substantial evidence. A treating physician’s opinion is entitled to controlling weight if it
is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence” in the record. 20
6
C.F.R. § 404.1527(c)(2); see also White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005). “This
rule takes into account the treating physician’s advantage in having personally
examined the claimant and developed a rapport while controlling for the biases that a
treating physician may develop such as friendship with the patient.” Oakes v. Astrue,
258 Fed. App’x 38, 43-44 (7th Cir. 2001) (internal citation omitted); Dixon v. Massanari,
270 F.3d 1171, 1177 (7th Cir. 2001). Once well-supported contradicting evidence is
introduced, however, the treating physician’s opinion is no longer entitled to
controlling weight and becomes “just one more piece of evidence for the administrative
law judge to weigh.” Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). If an ALJ decides
not to give controlling weight to a treating physician’s opinion, however, he must
explain her reasons for doing so. Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011).
Failure to do so is cause for remand. Id. And that’s where the ALJ’s opinion here gets
into trouble.
The ALJ gave the opinion of Newman’s treating physician at the Elkhart Clinic
Department of Neurology—Dr. Vidic—“some weight,” but he did not give it
controlling weight. [DE 12 at 26.] The record contains Dr. Vidic’s July 2013 Residual
Functional Capacity Questionnaire dated July 10, 2013 as well as supporting treatment
records from January 2010 to February 2013. [Id. at 583-611.] While the ALJ found that
parts of Dr. Vidic’s opinion were consistent with the longitudinal evidence, he
concluded that “Dr. Vidic goes too far in reducing the claimant to fine manipulating,
grasping, turning and twisting objects for only 35% of the work period and reaching for
7
only 10% of the work period.” [Id. at 26.] The ALJ found that “[a]t worst, the claimant
has only ‘some difficulty’ with fine manipulation and there is little objective evidence
supporting less than frequent gross manipulation.” [Id.]
Even though the ALJ didn’t flat out ignore Dr. Vidic’s opinion, he gave it a pretty
cursory treatment and then, problematically, failed to adequately explain why he was
accepting or discounting various parts of Dr. Vidic’s opinion. And, more importantly,
the ALJ seems to have ignored record evidence corroborating Dr. Vidic’s opinion about
Newman’s manipulative limitations. For example, the Nerve Conduction-EMG Study
Report that Dr. Vidic interpreted showed that Newman’s left triceps potentially were
not getting proper nerve stimulation. [Id. at 608.] Dr. Vidic also performed a Bilateral
Upper Extremity Somatosensory Evoked Potential Report explaining that it was “a
bilateral abnormal study suggestive of bilateral proximal abnormality. Localization is
not possible due to the fact that the last normal waveform was Erb’s point. Therefore,
this could be anywhere either in the cervical spine or cortex.” [Id. at 607.] The ALJ
makes no mention of these exams.
Dr. Vidic’s opinion about Newman’s manipulative limitations also is consistent
with the observations of Dr. Naeem, another treating physician at the Elkhart Clinic
Department of Neurology, whose notes Dr. Vidic reviewed while preparing his
Residual Functional Capacity Questionnaire. [Id. at 584.] On September 2010,
November 2010, July 2011, Dr. Naeem observed that Newman “[h]as some give away
weakness in his b/l upper extremity mainly hand grip.” [DE 12 at 381, 386, 389.] In
8
November 2010 and July 2011, Dr. Naeem observed that Newman “[s]till has mild
bilatera[sic] hand grip weakness (old).” [Id. at 381, 386.] In October 2011, Newman
saw Dr. Vidic for a neurology follow up and complained that “[t]he more he uses his
hands, the more they bother him. hard[sic] to hold on to things.” [Id. at 397.] Dr. Vidic
observed during this examination that Newman was in “moderate distress,” “distal
hand weakness,” and “diminished temperature right upper extremity to mid
forarm[sic] diminished temperature right upper extremity.” [Id. at 398-399.] The ALJ
makes no mention of Dr. Naeem’s observations or these portions of Dr. Vidic’s
observations during Newman’s neurology follow up.
Dr. Vidic’s opinion also is consistent with certain findings of Dr. Coulter, a
consultative physical examiner, who noted, upon examining Newman, that: “Grip
strength decreased. Effectively able to perform gross movements. Some difficulty
performing fine movements with his hands. Not atrophy present. Muscle strength and
tone 5/5 except in his hands with[sic] is 4/5.” [DE 428.] Dr. Coulter also noted that
Newman’s “primary disability is chronic pain and weakness in his hands, chronic
fatigue and Asperger’s syndrome” and that he “may have difficult with tasks that
require fine hand movements, gripping, grasping, pinching. He may have problems
with prolonged exertional tasks.” [Id.] The ALJ seemed only to latch on to Dr. Coulter’s
opinion that Newman only has some difficulty performing fine movements with hands,
noting the 4/5 grip strength, but inexplicably finding that was insufficient to support
Dr. Vidic’s opinion regarding Newman’s manipulative limitations. [DE 12 at 26.]
9
In summary, the ALJ neglected to discuss Newman’s test results, several aspects
of Dr. Vidic’s neurologic exam notes, Dr. Naeem’s observations, and appears to have
impermissibly cherry picked certain aspects of Dr. Coulter’s opinion to support his
conclusion that Newman “has only ‘some difficulty’” performing fine movements with
hands and that Newman “does not have documented reduced strength in his upper
extremities (besides 4/5 grip strength), reduced reflexes or impaired range of motion.”
[DE 12 at 26.] The ALJ’s reliance on certain evidence that supports his decision while
failing to address, and potentially failing to even consider, contrary evidence strikes me
a classic case of “cherry-picking” that the Seventh Circuit has denounced time and time
again. Scott, 647 F.3d at 740; Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
Furthermore, if an ALJ does not give a treating physician’s opinion controlling
weight, he is required to consider several factors including the length, nature, and
extent of the treatment relationship, frequency of examination, the physician’s specialty,
the types of tests performed, and the consistency and supportability of the physician’s
opinions. 20 C.F.R. § 404.1527(c)(2). While the ALJ acknowledged that Dr. Vidic is
Newman’s treating neurologist, and in a different portion if his opinion noted that
Newman went a full year without seeing Dr. Vidic, he does not discuss any of these
required factors when explaining his decision only to give Dr. Vidic’s opinion “some
weight.” [DE 12 at 26.] The ALJ’s failure to analyze this required checklist of factors is
fatal to his partial rejection of Dr. Vidic’s opinion. Larson v. Astrue, 615 F.3d 744, 751
(7th Cir. 2010).
10
In sum, I am unclear as to why the ALJ rejected the portion of Dr. Vidic’s opinion
regarding manipulative limitations especially in light of the apparent longitudinal
evidence supporting that opinion. The Seventh Circuit has “repeatedly stated that the
ALJ’s decision must be based upon consideration of all the relevant evidence, and that
the ALJ must articulate at some minimal level his analysis of the evidence.” Id. The
ALJ failed to do so here. And, as noted above, this failure is potentially significant
because when the ALJ asked the vocational expert to consider a person “limited to less
than occasional reaching and less than occasional fine fingering and gross manipulation
with the hands—and that would come from the, a portion of Dr. [Vidic’s] July ’13
statement,” the vocational expert said that these limitations, when combined with
previously mentioned social and physical limitations, would “eliminate all jobs.” [DE
12 at 79-80.] So to be clear, if the ALJ gave Dr. Vidic’s opinion controlling weight, he
likely would have found that Newman is disabled.
For these reasons, a remand is necessary to permit the agency to further assess
the evidence and develop the record regarding Newman’s manipulative limitations.
Because these grounds already require remand, I will not address Newman’s remaining
arguments, but the ALJ should consider and address them as appropriate.
Conclusion
For the reasons stated above, the ALJ’s decision denying benefits is REVERSED
and this cause is REMANDED for further proceedings consistent with this Opinion and
Order.
11
SO ORDERED.
ENTERED: September 29, 2016
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?