United States District Court, S.D. Indiana, New Albany Division
ELGIN W. FIDELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, JUDGE United States District Court
Elgin W. Fidell (“Mr. Fidell”) requests judicial
review of the final decision of the Commissioner of the
Social Security Administration (the
“Commissioner”), denying his applications for
Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”), and Supplemental Security Income
(“SSI”) under Title XVI of the Act. For the
following reasons, the Court REMANDS the decision of the
Commissioner for further consideration.
25, 2012, Mr. Fidell filed an application for DIB, and on
June 30, 2012, an application for SSI, alleging an amended
disability onset date of May 24, 2011, due to back pain.
(Filing No. 13-3 at 83.) His applications were denied
initially and on reconsideration. (Filing No. 13 at 32.) In
July and December 2014, Mr. Fidell testified at a hearing
before an Administrative Law Judge (“ALJ”).
(Filing No. 13-3 at 54; Filing No. 13-3 at 70.) On January
23, 2015, the ALJ issued a decision finding that Mr. Fidell
was not disabled under the Act. (Filing No. 13.) The Appeals
Council denied Mr. Fidell's request for review on January
19, 2016, making the ALJ's decision the final decision of
the Commissioner for purposes of judicial review. (Filing No.
13 at 9.) On March 18, 2016, Mr. Fidell filed this action for
judicial review of the ALJ's decision pursuant to 42
U.S.C. § 405(g). (Filing No. 1.)
Fidell was born in November 1963. (Filing No. 13 at 85.) At
the time of his alleged amended disability onset date, he was
47 years old, and he was 52 years old at the time of the
ALJ's decision. At his hearing, Mr. Fidell testified that
he completed schooling through the tenth grade (Filing No.
13-3 at 76). Prior to the onset of his alleged disability,
Mr. Fidell had an employment history of working as a fast
food worker, pizza delivery driver, machine operator, and
tire technician, (Filing No. 13 at 104).
Shuyan Wang (“Dr. Wang”) conducted a consultative
examination of Mr. Fidell on August 10, 2012. (Filing No.
13-1 at 33-38.) Mr. Fidell complained of shortness of breath,
back pain, and neuropathy that caused him difficulty in
walking. (Filing No. 13-1 at 35.) Mr. Fidell stated that he
walked with the assistance of a rolling walker. (Filing No.
13-1 at 35.) He told Dr. Wang that with it, he could walk 15
to 20 feet, and without it, about 10 feet. (Filing No. 13-1
at 35.) As relevant here, Dr. Wang made several conclusions:
When he gives the history, he stated that he can only walk 10
feet without the walker. He seems unable to walk without the
walker at all during the examination.
It is not consistent with the history (Filing No. 13-1 at
I am not sure of the effort for the fine finger manipulation
testing… He did not give effort for bilateral hand
subjective grip strength testing. He states it is due to
hands pain. He is able to hold the walker tightly to get up
from sitting and get on and off the examination table. It is
not consistent with bilateral hand grip strength testing,
(Filing No. 13-1 at 37); ….
His performance during the examination is not quite
consistent with his history. His performance during the
examination is not quite consistent at different times. I am
not sure of the effort…Additional information is
needed regarding the back pain and neuropathy. (Filing No.
13-1 at 38.)
Fidell was under the care of his treating physician,
Abdelmessiah (Michael) Guirguis M.D., (“Dr.
Guirguis”) from (at least) 2011 through the time of Mr.
Fidell's hearing. (Filing No. 13-1 at 122.) On July 3,
2014, Dr. Guirguis filled out an “IME Doctor's
Estimate of Physical Capacities” form (“IME
form”), which instructed the physician to
“complete the following items based on [his] clinical
evaluation of the claimant and other testing results.”
(Filing No. 13-2 at 103.) Dr. Guirguis indicated that Mr.
Fidell could, during an eight-hour workday: sit for one hour
at a time; stand for less than ten minutes at a time; and
walk for two to three minutes at a time. (Id.) Dr.
Guirguis indicated that during an eight-hour workday, Mr.
Fidell could sit for a total of four hours, but left the
questions blank regarding how many hours Mr. Fidell could
stand or walk. (Id.) Dr. Guirguis also reported that
Mr. Fidell could “seldom” lift or carry objects,
but he left blank the sections designating what weight Mr.
Fidell could lift or carry. (Id.)
Guirguis also made the following indications, by checking
boxes corresponding with each question:
Mr. Fidell could not use his hands for repetitive tasks, such
as grasping, pushing and pulling, ...