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Newton v. Commissioner of Social Security Administration

United States District Court, N.D. Indiana, Fort Wayne Division

November 22, 2017

LARRY NEWTON, JR., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, sued as Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Susan Collins United States Magistrate Judge.

         Plaintiff Larry Newton, Jr., appeals to the district court from a final decision of the Commissioner of Social Security (the "Commissioner") denying his application under the Social Security Act (the "Act") for Disability Insurance Benefits ("DIB").[2] (See DE 1). For the following reasons, the Commissioner's decision will be AFFIRMED.


         On May 24, 2012, Newton filed his application for DIB, alleging disability as of August 31, 2010. (DE 11 Administrative Record ("AR") 47). Newton's date last insured for DIB purposes is March 31, 2011 (the "DLI"). (AR 47). Newton's DIB claim was denied initially on July 18, 2012, and was again denied upon reconsideration on August 28, 2012. (AR 73-89). Newton filed a request for a hearing before an Administrative Law Judge (AR 91), and Administrative Law Judge Patricia Melvin (the "ALJ") held a hearing on June 12, 2013, at which Newton and Micha Daoud, a vocational expert (the "VE"), testified. (AR 6-41). Newton was represented by George Merkle, a non-attorney representative, at the hearing before the ALJ. (AR 71-72). On April 10, 2014, the ALJ issued an unfavorable decision, finding that Newton was not disabled because, through the DLI, he was capable of performing a significant number of jobs in the national economy. (AR 47-58). Newton requested the Appeals Council review the ALJ's decision (AR 4), and the Appeals Council denied his request, making the ALJ's decision the final, appealable decision of the Commissioner (AR 64-67).

         Newton filed a complaint with this Court on October 9, 2015, seeking relief from the Commissioner's final decision. (DE 1). In this appeal, Newton alleges that the ALJ erred by: (1) improperly evaluating his mental condition under agency regulations; (2) failing to consider whether his condition medically equaled Listing 4.12; (3) failing to assign weight to the post-hearing examinations; and (4) improperly evaluating his credibility. (DE 15 at 16-24).


         A. Background

         At the time of the ALJ's decision, Newton was 47 years old. (AR 10). He has a ninth-grade education and obtained his GED. (AR 11). His employment history includes work as a carpenter and as a construction worker. (AR 36, 328).

         B. Newton's Testimony at the Hearing

         At the hearing, Newton testified as follows: Newton lives in a house with his girlfriend and her two children. (AR 11). His height was five feet, seven inches, and he weighed 160 pounds. (AR 11). He had not had any vocational training since he had left school in the ninth grade, but he did serve in the Indiana National Guard from 1984 to 1988. (AR 11-12). Newton's girlfriend is the only source of income in their household, as Newton does not receive Medicaid, food stamps, unemployment, or worker's compensation, and he was not working. (AR 12).

         Newton last worked in August 2010 for Brad Ashe, a non-union contractor, doing heavy construction work and hanging heavy sheets of drywall. (AR 12-13). Newton had only been working for Brad Ashe for about a month when he could no longer do the job because of severe leg pain, but he had worked in construction for 20 years prior. (AR 12-14). Newton had never quit a job, and he was never fired, although he was laid off due to the seasonal and temporary nature of construction jobs. (AR 15-16).

         Newton's most severe problem that keeps him from working is the pain he has in both of his legs with any kind of exertion. (AR 16). He believes his leg pain is caused by peripheral artery disease, which was diagnosed in January 2011. (AR 16). The pain is in both of his calves, and it is also in his left thigh. (AR 17). He had stents put in both of his legs in August 2011. (AR 17). Newton's pain worsens with exertion, from walking, climbing stairs, or even just from sitting for a long period. (AR 17). When he is sitting, his pain is not too bad, but his legs feel numb and his toes feel tingly. (AR 17). On a scale of zero to 10, with 10 being a trip to the emergency room for the pain, Newton stated that the pain in his legs with exertion is "at least an eight or a nine." (AR 17-18). Newton has not had any other treatment for his peripheral artery disease other than the stents, but he does take medication, including lisinopril, Lovastatin, the generic form of Plavix, and baby aspirin. (AR 18). Newton stated that the medications "don't seem effective" to him, and just make him dizzy. (AR 18). Newton has no other side effects, besides the dizziness, from his medication. (AR 18). Newton also takes tramadol for pain, which "helps a little bit but not much." (AR 18-19). The pain in Newton's legs is aggravated by squatting, climbing, kneeling, and any kind of exertion. (AR 20). The pain in his legs is better when he is at rest. (AR 20).

         Newton has pressure in his chest, which is constant, and shortness of breath, which he believes also keep him from working. (AR 20-21). The pressure in his chest and his shortness of breath worsen with exertion. (AR 22). On a pain scale of 10, the pressure in his chest is "a four or a five." (AR 23). When the pressure worsens, Newton sits and rests, and the more intense pressure goes away in about four or five minutes. (AR 23).

         Newton also had gangrene in his right calf, which was cured when the bone and tissue were removed in 1996. (AR 23-24). Because of the bone and tissue removal, Newton's calf muscle tightens up constantly, which impacts his leg mobility and his ability to work. (AR 24). When his calf tightens up, he has to stretch it, but it affects his ability to walk and climb stairs or ladders. (AR 24, 30). When he stretches it out, it releases and then he is more mobile, but it will tighten up again. (AR 30). Newton has not had any treatment for his right calf since 1996. (AR 24).

         Newton also has problems with joint pain and arthritis in his knees, ankles, hip, neck, back, and hands. (AR 30). He can still grasp things, but his hands hurt when he gets up in the morning. (AR30). Newton's arthritis began in 2008, but he has not been treated for it. (AR 33). Newton does not take medication for his arthritis, but his tramadol pain medication also helps ease his arthritic pain. (AR 33). On a scale of one to 10, Newton's pain in his hips, knees, ankles, back, neck, and hands is a "six" when he first gets up in the morning, and it "eases down to a three or a four" after he has been up for an hour. (AR 34).

         Newton stated that he can walk 30 feet without pain; he can stand for 15 to 20 minutes; he can sit for 15 to 20 minutes; he can lift 20 pounds without pain; he is right handed, and he has no problems pushing and pulling with his arms; he can reach out and overhead, and he can use his hands to grip things like doorknobs, cups, glasses, and silverware; he can use his fingers to do things like button buttons, zip zippers, and tie shoelaces; he can use his legs to push a gas or brake pedal; he can climb stairs with difficulty; he can bend over and touch his knees; he can bend over and touch his toes, but it is painful; he does not have problems with his balance; his dizziness comes and goes every day; he has never fallen and does not have any problems dressing himself; he gets in and out of the shower by himself; and he has a driver's license and drives once or twice a month. (AR 24-27).

         Newton does not have any hobbies; he used to lift weights when he was younger, but he cannot do that anymore. (AR 27). His girlfriend performs the household tasks, such as the cooking, shopping, dish washing, laundry, vacuuming, sweeping, mopping, making the beds, cleaning, and takes out the garbage. (AR 27). Newton mows the grass on a riding lawnmower. (AR 28). Newton drinks alcoholic beverages, about five or six beers twice a week. (AR 28). Newton has never lost a job or been disciplined at work due to his drinking, but his drinking did cause him to miss some work. (AR 28). Newton had not had any problems at work since 2004, when he stopped drinking heavily. (AR 28-29). Newton stated that he had not used any illegal drugs since 2004. (AR29).

         C. Summary of the Relevant Medical Evidence

         1. Evidence Prior to the DLI

         On July 9, 2009, Newton saw Dr. William Lloyd at Markle Medical Center, who reported that Newton was anxious and experiencing insomnia. (AR 377). Dr. Lloyd diagnosed him with hypertension, and prescribed medication for his blood pressure and anti-depressants for insomnia relief. (AR377).

         On March 8, 2010, Newton was seen by Dr. Deborah Miller. (AR 376). Dr. Miller noted that Newton felt depressed as a result of his dog and cat dying. (AR 376). Newton told Dr. Miller that the antidepressants prescribed by Dr. Lloyd had not helped with sleep. (AR 376). Dr. Miller prescribed two new antidepressants, a sedative, and antibiotics, and she referred Newton to a cardiologist. (AR 376).

         A year later, Newton saw Dr. Miller again, on February 15, 2011. (AR 364). Dr. Miller recorded that Newton had no right pedal pulse and a low palpable left pedal pulse. (AR 364). Newton's feet were cold, and he exhibited chest pain, headaches, shortness of breath, hypertension, paresthesia in his face and legs, claudication, dizziness, transient visual changes, tunnel vision, and discoloration of his feet. (AR 364). Dr. Miller ordered diagnostic tests, but Newton was concerned he would not be able to receive the tests because he was not working and had no way to finance them. (AR364).

         On Dr. Miller's instructions, Newton saw Dr. Peter Simmons the next day to receive an exam using a multi-detector computed tomography, which scored the calcium level in Newton's blood vessels. (AR 338). Newton's calcium score came back as 575.82, which was in the highest percentile associated with a high probability of occlusive coronary artery disease and increased risk of cardiovascular events. (AR 338-39). The same day, Newton received "Vascular Screening Results" from three different tests: a carotid artery stroke screening, an abdominal aneurysm screening, and an ABI-lower extremity screening. (AR 356). While two of the tests showed nothing of concern, the results of Newton's ABI-lower extremity screening were highlighted as "Bad." (AR 356). Dr. Miller's report noted a severe level of claudication and suggested that Newton's condition was urgent. (AR 356).

         Shortly thereafter, on March 4, 2011, Newton saw cardiologist, Dr. Vincent Scavo. (AR 359-60). Newton underwent an ultrasound which showed no signs of an aneurysm but noted that his ankle brachial index was 0.89 at the left, and 0.54 on the right. (AR 343). "His EBT score showed high risk for calcific coronary artery disease." (AR 359). Newton had no femoral pulses bilaterally, and he reported pressure in his chest "intermittently" when exerting himself. (AR 359-60). Dr. Scavo observed that Newton had "a history of life-altering calcification[, ]" shortness of breath, and chest pain with exertion, but he did not recommend a treatment plan. (AR 360). However, Dr. Scavo was optimistic about the potential effects of surgery on Newton. (AR 360).

         On March 29, 2011, Newton saw another cardiologist, Dr. Gary Hambel. (AR 371-72). Dr. Hambel performed an exam and found the following: "significant dyspnea on exertion and occasion chest discomfort"; "significant risk factors for ischemic heart disease"; "[s]ymptoms consistent with significant ischemic heart disease and unstable angina"; "[s]evere peripheral vascular disease with significant bilateral lower extremity claudications"; "[h]ypertension"; and "[u]ntreated hyperlipidemia." (AR 371). The report cautioned that Newton could "potentially need catheterization from the arm." (AR 371).

         Two days later, on March 31, 2011, Newton saw Dr. Miller again. (AR 374). Newton had ceased working and had "no prescription coverage." (AR 374). Newton was "very anxious." (AR 374). Dr. Miller diagnosed Newton with: (1) acute sinusitis/bronchitis; (2) peripheral vascular disease; (3) coronary disease with chest pain; (4) mild carotid disease; (5) hypertension; (6) hyperlipidemia; and (7) bilateral claudication. (AR 374). Dr. Miller prescribed medication and suggested "check up[s] after tests." (AR 374).

         2. Evidence After the DLI

         On April 5, 2011, Newton saw Dr. Vijay Chilakamarri, who performed a coronary angiogram and peripheral angioplasty. (AR 383-89). These tests showed that Newton exhibited moderate calcification with no significant focal coronary artery disease that would require intervention, critical stenosis of the right, and left external iliac arteries with successful percutaneous transluminal angioplasty stenting using bare metal stents, and intermediate grade right and left common femoral artery disease. (AR 383-89). Artery stenting reduced ulcerated stenosis from 85-90 percent to zero percent, and right common to external iliac stenting reduced subtotal stenosis from 99 percent to zero percent. (AR 384).

         On August 24, 2011, Newton saw Kimberly Butcher, MS, LMHC, on a referral from Wells County Probation. (AR 397). Ms. Butcher noted that Newton suffered from "[m]ental issues potentially impacting treatment includ[ing] depression and anger." (AR 397). Given his state of stress and history of alcohol abuse, Newton was "at very high risk to relapse to full alcohol dependence." (AR 397). Ms. Butcher noted that Newton had problems in the workplace with aggression and attendance, and opined that Newton's history was marked by job loss mostly due to economic downturn. (AR 400). Newton showed mild adjustment problems largely due to past trauma and previous criminal charges. (AR 400). Newton would become verbally aggressive when he drank, and Ms. Butcher diagnosed Newton with alcohol abuse, assigning him a Global Assessment of Functioning ("GAF") score of 62.[4] (AR 400-02). In addition, Ms. Butcher noted Newton exhibited symptoms of depression, insomnia, difficulty in social or occupation settings, but otherwise able to function and maintain interpersonal relationships. (AR 402-03). Ms. Butcher observed that Newton's issues with physical and mental health could affect the treatments available to him. (AR 397). Following this evaluation, Ms. Butcher became Newton's primary therapist. (AR 397).

         On January 5, 2012, Karen Lothamer, CNS, and Dr. Ronald Pancer performed a psychiatric evaluation of Newton at Park Center. (AR 431-34.). Newton's "Chief Complaint" was that he had "real high anxiety" and that when he used alcohol to cope with the anxiety, he became "extremely violent" resulting in nine charges for battery and incarceration. (AR 431). The report observed that Newton presented with the following: depression, mood fluctuation, agitation, violence, homicidal ideation, paranoia, a history of abuse or trauma, anxiety, panic attacks, agoraphobia, and sleep problems. (AR 430-31). This report affirmed Dr. Butcher's GAF score of 62. (AR 433). Ms. Lothamer and Dr. Pancer prescribed antipsychotic and antianxiety medications. (AR 433). They created a treatment plan for Newton that included his attendance at subsequent appointments. (AR 411). However, Newton's attendance was poor, as he failed to appear for any appointments after March 2012. (AR 411).

         Joelle Larsen, Ph.D., a psychologist for the Disability Determination Bureau (the "DDB"), reviewed Newton's record and completed a "Psychiatric Review Technique" on July 13, 2012. (AR 448-60). Dr. Larsen found "insufficient evidence" of a medically determinable mental impairment or the equivalent of a medically determinable mental impairment in Newton. (AR 448-60). Donna Unversaw, Ph.D., also a DDB psychologist, later affirmed this report. (AR 470).

         On July 5, 2012, Dr. John Greenman performed an evaluation of Newton, including Newton's psychological and physical history in the past six years. (AR 463-68). Newton reported to Dr. Greenman that he had peripheral artery disease (AR 463) and atrophy in his right calf (AR 466). Newton reported that he had difficulty working due to his leg and chest pain; he could not lift heavy loads; and he had significant limitations standing walking, lifting, pushing or pulling, squatting, crawling, and climbing. (AR 466-68). Newton also told Dr. Greenman that he had difficult getting along with others, sleeping issues, and violent behavior. (AR 463, 465). Although Dr. Greenman made no diagnosis, his report notes that Newton had not ...

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