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Newman v. Colvin

United States District Court, N.D. Indiana, South Bend Division

September 29, 2016

BRIAN NEWMAN, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.



         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.


         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 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. 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 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.]

         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 goal-oriented 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, believed that Newman was far more limited in his hand manipulation ability than the ALJ believed him to be. But the ALJ rejected Dr. ...

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