United States District Court, E.D. Arkansas, Jonesboro Division
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.
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
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).
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).
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.
Evidence During the Relevant Period:
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).
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).
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).
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
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 ...