Whitlock v. Saul

          ORDER

         Plaintiff Betty Whitlock (“Whitlock”), in her appeal of the final decision of the Commissioner of the Social Security Administration (defendant “Saul”) to deny her claim for Disability Insurance benefits (DIB), contends the Administrative Law Judge (“ALJ”) erred: (1) by missing or ignoring objective medical evidence proving severe scoliosis of her thoracic spine and failing to find it was a severe impairment; (2) by failing to develop the record regarding hearing loss and mental impairments; (3) by disregarding the opinions of Whitlock's treating physician, an examining consultative physician, and a nonexamining disability screener, instead relying on a nonexamining reconsideration screener and his own medical opinions; (4) in the residual functional capacity (“RFC”) assessment; and (5) by finding Whitlock could perform her past relevant work. The parties have ably summarized the medical records and the testimony given at the administrative hearing conducted on April 25, 2018. (Tr. 31-65). The Court has carefully reviewed the record to determine whether there is substantial evidence in the administrative record to support Saul's decision. 42 U.S.C. § 405(g). The relevant period under consideration is from December 23, 2014, the alleged onset date, through March 31, 2018, Whitlock's date last insured.

         The Administrative Hearing:

         At the outset of the hearing, Whitlock indicated she had been having hearing problems. Upon subsequent questioning from the ALJ, she indicated her left ear was the issue, and that she had not seen a doctor for the problem. She was 50 years old, was 5'2" tall and weighed 112 pounds, and had an eleventh grade education. Whitlock lived with her husband and fifteen year old daughter. She stated she could read and write, add and subtract, and had past relevant work for about 2 ½ years as an office worker at Pathfinders. She had conflicts with her supervisor at this job, and was fired. Whitlock testified she could not perform this previous job at the time of the hearing because her pain has “gotten a lot worse.” (Tr. 40). Whitlock also had past relevant work, for fourteen years, as a tobacco store manager. This job entailed hiring, supervising, and scheduling six workers. Whitlock stated she left that job, which required lifting up to thirty pounds, due to leg and back problems. William David Elmore (“Elmore”), a vocational expert, rated Whitlock's past work as light semiskilled and light skilled.

         Whitlock explained she could not perform her past jobs due to pain in her back, hips, and shoulder, numbness in her right leg, inability to lift a gallon of milk, and inability to stand or sit for long periods. According to Whitlock, her impairments prevent her from shampooing carpets, grocery shopping, and sometimes prevent her from cooking. Whitlock stated she took Meloxicam for leg pain, and no other medication. Whitlock conceded that she smoked one half a pack of cigarettes daily and was unaware smoking was bad for her osteoporosis. Whitlock identified a Dr. Wallace as having diagnosed her with osteoporosis, stage two. (Tr. 34-59).

         Elmore was asked to consider a hypothetical worker of Whitlock's age, education, and experience, who could perform light work. The ALJ asked Elmore to assume this worker has scoliosis, low back pain related to scoliosis, some leg and ankle pain, a negative RA factor and SED rate of 6 when 0 to 20 is defined as normal, and the worker has mild to moderate pain, and could occasionally climb, stoop, crouch, kneel, and crawl. Although the ALJ found the worker to have a mood disorder, he also found there were no mental job restrictions. Elmore responded that such a worker could perform Whitlock's past relevant jobs as a retail sales clerk, retail manager, and case aide. The ALJ noted that if Whitlock was limited to sedentary jobs she would be deemed “disabled based on the grids.” (Tr. 62). (Tr. 59-62).

         ALJ's Decision:

         In his August 24, 2018, decision, the ALJ determined Whitlock had the following severe impairments: scoliosis and degenerative disc disease of the lumbar spine, with osteopenia/osteoporosis. The ALJ addressed Whitlock's allegations of mental impairments, finding them non-severe. Specifically, the ALJ analyzed the “paragraph B” criteria and determined Whitlock had mild limitations in these three areas: (1) understanding, remembering, or applying information; (2) interacting with others; and (3) concentrating, persisting, or maintaining pace. The ALJ found no limitation in Whitlock's ability to adapt or manage herself. The ALJ found Whitlock did not have an impairment or combination of impairments that met a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ expressly considered if Whitlock met Listing 1.02 (major dysfunction of a joint) or Listing 1.04 (disorders of the spine). The ALJ further determined Whitlock had the RFC to perform the full range of light work. The ALJ, citing the appropriate factors, assessed Whitlock's subjective allegations, finding her statements “not entirely consistent with the medical evidence and other evidence in the record.” (Tr. 21). The ALJ thoroughly discussed the medical evidence, as well as the hearing testimony and the responses submitted by Whitlock in a Function Report and a Pain Questionnaire. With regard to the medical evidence, the ALJ emphasized the findings of Dr. Michael Eric Tedder (“Tedder”), Whitlock's primary treating physician. He also addressed the 2017 consultative physical evaluation of Dr. Maharshi Patel (“Patel”), who opined, among other things, that Whitlock was capable of sitting for a full workday with mild to moderate amounts of walking and/or standing as needed. The ALJ also noted the non-examining state agency medical consultant's opinion that Whitlock could perform less than the full range of sedentary work, finding the opinion “limited in persuasiveness.” (Tr. 25). Relying upon Elmore's testimony that Whitlock could perform her past relevant work, the ALJ concluded she was not disabled. (Tr. 10-26).

         Medical Evidence During the Relevant Period:

         Whitlock saw Tedder in January 2015 and was diagnosed with osteoporosis-primary, mood disorder, scoliosis, and grief. She was taking Alprazolam, Mylanta, Vitamin D tablets, Prilosec, Ultram, Meloxicam, and Zoloft. (Tr. 283-290). She returned for medication refills in March, and was diagnosed with mood disorder-primary, nocturnal leg cramps, and musculoskeletal pain. Whitlock reported bilateral leg pain. Tedder's physical exam noted that Whitlock appeared well-developed, with normal range of motion in her neck and normal musculoskeletal range of motion. Tedder directed her to return in six months. (Tr. 290-297). When Whitlock returned to Tedder in September 2015, she was diagnosed with mood disorder-primary and insomnia, unspecified. Tedder's plan was to continue the same medications, with Whitlock to return in two months. (Tr. 298-304). At her November 2015 visit with Tedder, Whitlock was diagnosed with nocturnal leg cramps-primary, mood disorder, osteoarthritis of ankle, unspecified laterality, unspecified osteoarthritis type. In the “subjective” portion of the treatment notes, no complaints about any bodily systems were recorded. Tedder's examination showed Whitlock ro be well-developed and well-nourished, with a normal range of musculoskeletal and neck motion. Tedder also found her to have a normal mood and affect. Whitlock was directed to return if symptoms worsened or failed to improve. (Tr. 305-313).

         Whitlock next saw Tedder in April 2016, when she complained of hip pain and he diagnosed mood disorder - primary. Whitlock reported to Tedder that the left hip pain stemmed from an incident more than one week prior to the appointment; that the pain was aching, moderate, and aggravated by weight bearing; and that mild relief was obtained via nonsteroidal anti-inflammatory drugs. Tedder's objective examination was normal in all areas with the exception of musculoskeletal tenderness. Whitlock was to return if symptoms worsened or failed to improve. (Tr. 314-322).

         Whitlock visited Tedder in December 2016 for medication refills, and was diagnosed with arthritis of both knees - primary, mood disorder, and nausea. Tedder listed Whitlock's problems as osteoporosis, mood disorder, scoliosis, grief, nocturnal leg cramps, musculoskeletal pain, and arthritis. No. complaints were recorded in the “subjective” portion of the treatment notes. Tedder's objective findings included a normal range of neck and musculoskeletal range of motion. Tedder administered a decamix injection and a vitamin B-12 injection. Whitlock was to return if symptoms worsened or failed to improve. (Tr. 337-343).

         In February 2017, Patel performed a physical consultative examination. Whitlock reported a history of back pain for thirty-five years. According to Whitlock, this pain interfered with day to day activities, medication provided some relief during the pain episodes, and her legs sometimes got numb, leading to falls. Whitlock denied shoulder or neck pain in a review of her systems, and admitted to anxiety, depression, and sleeping difficulties. She also denied any difficulty in concentrating. Patel's physical examination included the following findings:

MUSCULOSKELETAL: No muscle asymmetry, atrophy, or involuntary movements. No. structural deformity, effusion, periarticular swelling, erythema, heat, or tenderness of any joint except deformity of lumbar spine with limited range of motion.

Gait/Station: Abnormal gait and ambulates without assistive device. Able to rise from a sitting position without assistance, stand on tiptoes and heels, and tandem walk without problems. Claimant was able to bend and squat with moderate difficulty.

Grip: 5/5 grip strength with adequate fine motor movements, dexterity and ability to grasp objects bilaterally.

EXTREMITIES: No edema, cyanosis, or erythema. . .

MENTAL STATUS: Alert and oriented to time, place, and situation. Cooperative with exam. Does not appear depressed or anxious. Able to communicate with no deficits. Recent and remote memory intact. Good ...