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Whiteside v. Colvin

United States District Court, E.D. Arkansas, Eastern Division

August 15, 2014

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JOE J. VOLPE, Magistrate Judge.

The following recommended disposition was prepared for United States District Judge J. Leon Holmes. A party to this dispute may object to this recommendation in writing. An objection must be specific and state the factual and/or legal basis for the objection. An objection to a factual finding must identify the finding and the evidence supporting the objection. Objections must be filed with the Clerk of the Court no later than 14 days from the date of this recommendation.[1] The objecting party must serve the opposing party with a copy of an objection. Failing to object within 14 days waives the right to appeal questions of fact.[2] If no objections are filed, Judge Holmes may adopt the recommended disposition without independently reviewing the record evidence. An objecting party who seeks to submit new, different, or additional evidence, or to obtain a hearing for that purpose, must address the following matters as part of written objections: (1) why the record before the magistrate judge was inadequate, (2) why the evidence was not presented to the magistrate judge, and (3) details and/or copies of any testimony and/or documents to be proffered at a hearing. Based on this submission, Judge Holmes will determine the need for a hearing.


Deborah Whiteside seeks judicial review of the denial of her application for supplemental security income (SSI).[3] Ms. Whiteside was forty-three years old when she filed the application in this case. She is the guardian of seven children. Six of the children receive SSI for disability; one child receives survivor's benefits.[4] Whiteside bases her claim on depression, seizures, arthritis, back pain, and heart problems.[5]

The Commissioner's decision. The Administrative Law Judge (ALJ) determined Ms. Whiteside has severe impairments - degenerative disc disease in the neck and low back, atypical seizure disorder, obesity, and depressive disorder[6] - but she can do some light work.[7] Because a vocational expert identified available work for a person with Ms. Whiteside's impairments, [8] the ALJ determined she is not disabled and denied the application.[9]

After the Appeals Council denied a request for review, [10] the ALJ's decision became a final decision for judicial review.[11] Ms. Whiteside filed this case to challenge the decision.[12] In reviewing the decision, the Court must determine whether substantial evidence supports the decision and whether the ALJ made a legal error.[13]

Ms. Whiteside's allegations. Ms. Whiteside states she meets listings 1.02 (dysfunction of a joint) and 1.04 (disorders of the spine) due to herniated discs and an inability to ambulate. She challenges the ALJ's evaluation of her credibility and the determination about her ability to work. She maintains that chronic pain, seizures, and depression prevent her from working. She contends the ALJ should have relied on her GAF (global assessment of functioning) scores. She says she didn't receive a full and fair hearing. For these reasons, she contends substantial evidence does not support the ALJ's decision.[14]

Applicable legal principles. For substantial evidence to support the decision, a reasonable mind must accept the evidence as adequate to show Ms. Whiteside can do some light work.[15] "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."[16] The ALJ placed the following limits on light work: (1) no lifting more than ten pounds overhead, (2) no climbing ladders/scaffolds, operating vehicles, or working where a risk of falling would cause serious injury, and (3) simple tasks requiring reasoning level 2 or less.[17] The Court must consider whether a reasonable mind would find the evidence adequate to show Ms. Whiteside can work within these limitations.

Back and neck pain. Ms. Whiteside alleges that constant, severe back pain prevents her from working. She testified that her back pain is so bad that, at times, she cannot walk; she can stand in a check-out line for only two to three minutes.[18] Diagnostic imaging of the back does show a disc bulge at L4/5 with consequential right foramina narrowing, and degenerative changes in the facets at L4/5 and L5/S1 bilaterally.[19] And imaging of the neck shows soft tissue herniation in foramen on right at C7-T1 with degenerative changes causing multilevel left sided neuroforaminal narrowing.[20] While these findings support her complaints of back and neck pain, they do not support an allegation of disabling pain. According to the pain specialist, Whiteside's pain "has a treatable cause."[21] Pain "which can be controlled by treatment or medication is not considered disabling."[22] During an emergency room visit for back pain, Whiteside got on and off the exam table without difficulty.[23]

Additionally, the agency medical consultants opined that Whiteside can do light work.[24] The record includes no medical findings implicating the requirements for listings 1.02 or 1.04. Ms. Whiteside may walk slowly, [25] but nothing shows she cannot ambulate effectively. The ALJ's reduction to light work responds to Ms. Whiteside's weight and back pain and the restriction on working overhead responds to her complaints of neck pain.

Seizures. Ms. Whiteside claims she has had seizures all her life.[26] She takes anti-seizure medication.[27] Her neurologist found nothing explaining her reported symptoms.[28] Diagnostic testing for epilepsy was negative.[29] The neurologist wondered if Ms. Whiteside experiences pseudoseizures - symptoms that appear as an epileptic seizure but having psychological causes - rather than actual seizures.[30] The neurologist recommended evaluation by the epilepsy center, [31] but she did not follow up. Ms. Whiteside's failure to follow medical advice without good reason bars her from obtaining disability benefits.[32]

Considering Ms. Whiteside reported a seizure every other day, [33] the failure to follow up with the recommended specialist weighs against her credibility.[34] A person who has seizures as frequently as Ms. Whiteside reports is not permitted to drive; it is unlikely a person who has seizures every other day can care for six disabled children. Ms. Whiteside says she doesn't watch her nephew's football games because she doesn't know when she will have a seizure, [35] but she still drives. The inconsistencies between her allegations and her actions support the ALJ's credibility evaluation.[36]

After reviewing the medical evidence, medical experts found it unclear whether Ms. Whiteside has a bonafide seizure disorder.[37] To the extent she has seizures, the ALJ's restrictions on climbing, driving, and falling risks respond to those symptoms. A reasonable mind would accept the evidence as adequate to show Ms. Whiteside can work within the ALJ's parameters.

Depression. During the relevant time period, Ms. Whiteside received mental health treatment for depression: psychotropic medication and individual therapy. Treatment notes reflect complaints of stress from taking care of disabled children, legal proceedings involving the children's mother, and worrying about her SSI application.[38] She didn't appear ...

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