Whitlock v. Social Security Administration

Filing 13

ORDER affirming the final decision of the Commissioner and dismissing with prejudice Whitlock's complaint. Signed by Magistrate Judge Patricia S. Harris on 10/4/2019. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
BETTY WHITLOCK
VS.

PLAINTIFF
CASE NO. 3:19CV00064 PSH

ANDREW SAUL,1 Commissioner,
Social Security Administration

DEFENDANT
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

1

Andrew Saul is now the Commissioner of Social Security and is substituted as the appropriate
defendant pursuant to Federal Rule of Civil Procedure 25(d).
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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).

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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

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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 nonexamining 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 welldeveloped, 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

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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

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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 insight and cognitive function. .
.
RADIOLOGY:
Lumbosacral images (AC and lateral) show severe scoliosis of the lumbar spine. .
.
Impression: Severe lumbar scoliosis with mild degenerative changes of the
lumbar spine. . .
DIAGNOSIS
1. Severe lumbar scoliosis with mild degenerative changes of the lumbar
spine.
CONCLUSION
Based on today’s examination and the objective evidence, I believe the
claimant should be able to sit for a full workday with mild to moderate amounts of
walking and/or standing as needed. Claimant should avoid duties which require a
lot of squatting. Claimant needs to limit lifting over 20 lbs. due to decreased range
of motion of lumbar spine.
(Tr. 349-351).
Whitlock saw Tedder in May 2017, and the treatment note reflects she was experiencing no
problems at that time. (Tr. 356). In August 2017, Whitlock returned for medication refills. All of

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her systems were negative, and the physical examination reflected normal findings. Tedder provided
a sample of Duavee and decreased the Tramadol dosage due to decreased hearing. (Tr. 356). In
January 2018, Whitlock returned to Tedder for a wellness examination. Subjectively, Whitlock
reported aching pain in her right hip, thigh, and ankle stemming from an incident more than one
week earlier. Tedder’s objective physical exam found normal range of motion in her neck, and
normal musculoskeletal range of motion. Tedder again administered a vitamin B-12 shot, and no
diagnosis was made. (Tr. 401-402). A few days later Whitlock made a follow-up visit, with normal
findings, and with no compliance problems noted with her medications. (Tr. 402).
In March 2018, Whitlock presented with lower extremity injury/pain which was described
as aching, severe, constant since onset, aggravated by movement and weight bearing, unresponsive
to acetaminophen, and 7 on a scale of 1-10. Tedder noted “severe 90 degree thoracic lumbar
scoliosis” with severe degenerative joint disease of the lumbar spine. (Tr. 405). Tedder’s diagnosis
was scoliosis of thoracic spine – severe, leg pain, scoliosis concern, anemia, iron deficiency, mood
disorder, and scoliosis of the lumbar spine. The severe thoracic lumbar scoliosis with severe
degenerative joint disease of the lumbar spine were observed on an x-ray. (Tr. 408).
On the same day of Whitlock’s March 2018 visit, Tedder executed a form Medical Source
Statement – Physical indicating the following abilities during a workday: lift and carry less than ten
pounds occasionally or frequently; stand and walk less than two hours; sit less than two hours, and
sit for thirty minutes without a break; unable to reach, finger, and handle; never climb, balance,
stoop, kneel, crouch, or bend; need for frequent, longer than normal breaks, and the opportunity to
shift at will from sitting or standing/walking. While Tedder indicated Whitlock’s impairment or her
medications could cause a decreased ability to concentrate or persist, he also indicated she would

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never need to be redirected in order to remain on task. The checklist provided an area for Tedder
to list objective medical findings which supported the limitations he found. In this area, Tedder
wrote: “Has to sit to cook/ cannot lift a gallon milk without using both hands/ this lady is
permanently & totally disabled!” (Emphasis in original) (Tr. 411-412). The time period covered
by Tedder’s opinion was “life.” (Tr. 412).
The Court now turns to the arguments advanced by Whitlock.
Error by missing or ignoring objective medical evidence proving severe scoliosis of her
thoracic spine and failing to find it was a severe impairment:
The ALJ acknowledged that Tedder diagnosed Whitlock with severe 90 degree thoracic
lumbar scoliosis on May 27, 2018, four days prior to the close of the relevant period under
consideration. The ALJ wrote the “record does not include any actual objective radiographic or
other scanning diagnostic reports” to support Tedder’s diagnosis. (Tr. 21). The ALJ was incorrect,
as the x-ray results document severe 90 degree thoracic lumbar scoliosis. (Tr. 408). He identified
scoliosis and degenerative joint disease of the lumbar spine, but not the thoracic spine, as a severe
impairment in his opinion. (Tr. 12).
Any error in failing to designate severe scoliosis of the thoracic spine as a severe impairment
is harmless. The ALJ did not conclude his analysis at Step 2 in this instance. Instead, he found
other severe impairments and proceeded with the sequential evaluation. Once an ALJ finds that a
claimant has a “severe” impairment at Step 2, the ALJ must then consider all impairments, including
those that are not severe, in determining a claimant's RFC. See 20 C.F.R. §§ 404.1545(e);
416.945(e); Social Security Ruling 96–8p, at 5; see also Maziarz v. Secretary of Health and Human
Serv., 837 F.2d 240, 244 (6th Cir.1987) (failure of ALJ to find claimant's cervical condition was

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severe at Step 2 was not reversible error where ALJ found the claimant had severe heart disease and
proceeded with the sequential evaluation). Here, the ALJ noted his duty to consider “all of the
claimant’s impairments, including impairments that are not severe” at Step 4. (Tr. 11). In addition,
the ALJ correctly noted he was not required to methodically discuss “every factor.” (Tr. 15). The
“failure to cite specific evidence does not indicate that such evidence was not considered.” See
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir.2010) and Holderer v. Astrue, No. 4:11CV00227
JTR, 2012 WL 1439165, at *3 (E.D. Ark. Apr. 26, 2012). There is no merit to this argument, and
the proper assessment of the entirety of the medical evidence will be addressed elsewhere in this
Order.
Error by failing to develop the record regarding hearing loss and mental impairments:
Whitlock contends the ALJ neglected to develop the record when he did not seek additional
evidence, including consultative examinations, regarding her hearing loss and mental impairments.
The Court disagrees. Even though Whitlock is correct that the ALJ has a duty to fully and fairly
develop the record, she fails to demonstrate how the record, which appears to contain all treatment
records during the relevant period, was inadequate and how additional reports would cure the
inadequacy. The objective medical evidence in this case was ample and the ALJ’s decision was
well-informed. See Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (ALJ not required to
order additional medical exams unless the existing medical record is insufficient). Ane while the
ALJ has an obligation to fully develop the record, there is no bright line test for determining whether
he has done so; the determination is made on a case by case basis. See Battles v. Shalala, 36 F.3d
43 (8th Cir. 1994). The key is whether the record provides the ALJ with ample information to allow
an informed decision to be made. Whitlock, who bears the burden of demonstrating her disability,

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points to her statements at the administrative hearing of hearing problems as a reason for further
development on the hearing issues. Whitlock did not allege disability due to hearing loss, and the
two brief treatment notes referencing hearing issues do not suggest further exploration was
necessary. In February 2017, Patel recorded that Whitlock’s hearing was intact bilaterally to a
whisper. (Tr. 350). In August 2017, Tedder decreased the dosage of Tramadol due to decreased
hearing.2 (Tr. 356). The ALJ was tasked with digesting a multitude of medical evidence, and almost
all of this evidence dealt with issues other than Whitlock’s hearing. The ALJ properly relied upon
the record before him with regard to Whitlock’s hearing.
Whitlock similarly argues the ALJ should have further developed the record regarding her
mental impairments. She alleged anxiety as one of her disabling impairments, and the ALJ
addressed in detail her assertion of mental impairments, finding them to be non-severe. While
Whitlock is correct that she took Xanax and Zoloft for years (as far back as 2005), treating physician
Tedder consistently found her to have normal mood, affect, and behavior. These findings span a
period from April 2016 to January 2018. (Tr. 318, 356, 401). Further, consultative examiner Patel
found Whitlock “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 insight and cognitive function.” (Tr. 350). There was no error in the ALJ’s reliance
upon the record before him.
Error by disregarding the opinions of Tedder, Patel, and a nonexamining disability
screener and instead relying on a nonexamining reconsideration screener and his own medical
2

Whitlock argues that Tedder also gave her samples of Duavee to address hearing issues. Docket
entry no. 16. However, Duavee is prescribed to address symptoms of menopause. See
www.webmd.com/drugs/2/drug-165639/duavee-oral/details.
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opinions:
Whitlock essentially portrays the ALJ as being faced with a multiple choice question where
he was required to choose: (A) Tedder’s opinion; (B) Patel’s opinion; (C) non-examining state
agency consultant Kay Cogbill’s (“Cogbill”) opinion;3 (D) non-examining state agency consultant
William Harrison’s (“Harrison”) opinion;4 or (E) his own medical opinion. Whitlock contends the
ALJ chose D and E, rejecting A, B, and C. This portrayal does not capture the process or the result
reached by the ALJ. The ALJ was not obligated to choose one or more opinions to the exclusion
of other opinions and other medical evidence. More discussion of the ALJ’s duty will follow in the
analysis of Whitlock’s fourth claim, error in the RFC determination.
Since Tedder was a treating physician, his opinion merits deference and “is to be given
controlling weight where it is supported by acceptable clinical and laboratory diagnostic techniques
and where it is not inconsistent with other substantial evidence in the record.” Shontos v. Barnhart,
328 F.3d 418, 426 (8th Cir. 2003). The ALJ thoroughly addressed Tedder’s opinion, finding it
“inexplicably inconsistent with his own prior medical findings and reports. . .” (Tr. 24). The ALJ’s
reasons for discounting Tedder’s opinion included: the absence of mentions of chronic pain,
numbness, and limiting symptoms in treatment notes; negative and normal findings of subjective
complaints; no notations of debilitating effects of scoliosis prior to the March 27, 2018 opinion; no
advice from Tedder for Whitlock to restrict her physical activities; no notation of an inability to
perform gainful activity prior to March 27, 2018; no referral to an orthopaedic or pain specialist; no
3

In February 2017, Cogbill opined that Whitlock was capable of performing less than sedentary, less
than unskilled work. (Tr. 69)
4

In June 2017, Harrison opined that Whitlock could perform light work with limits. (Tr. 89).
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evidence Whitlock was regularly prescribed strong, narcotic medications from Tedder; and no
complaints of adverse side effects from the medications taken by Whitlock. (Tr. 23). These factors
provide an ample basis for discounting Tedder’s opinion. The normal objective findings in Tedder’s
treatment notes prior to March 27, 2018 are particularly persuasive, and substantial evidence
supports the weight the ALJ assigned to Tedder’s opinion.
In summary, there was no error in the alleged failure to the ALJ to wholly embrace Tedder,
or any other physician. The ALJ did not simply opt for one physician’s opinion to the exclusion of
all others. See Hensley v. Colvin, 829 F.3d 926 (8th Cir. 2016) (no requirement that an RFC finding
be supported by a specific medical opinion). There is no merit to Whitlock’s third claim.
Error in the RFC assessment:
It “is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s own
descriptions of his limitations.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
Medical records from treating physicians can provide affirmative medical evidence supporting an
RFC determination. Johnson v. Astrue, 628 F.3d 991 (8th Cir. 2011). It is ironic that the treatment
notes of Tedder, who opined Whitlock to be permanently and totally disabled, provide evidence
supporting the ALJ’s RFC determination. The Court has previously cited the normal findings, and
absence of referrals, of limitations, and of strong prescription medication as persuasive items
gleaned from Tedder’s notes. In addition, Whitlock saw Tedder on an infrequent basis, occasionally
with a six month gap between visits.
Patel’s findings also lend some support the ALJ’s RFC holding. While Patel did not
explicitly endorse Whitlock’s ability to perform light work, he opined she could perform work with

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mild to moderate amounts of walking and /or standing, avoiding duties requiring a lot squatting and
lifting over twenty pounds. (Tr. 351). The ALJ assigned “some evidentiary weight” to Patel’s
findings. (Tr. 25). Citing the other evidence in the record and the hearing testimony, the ALJ
determined Whitlock capable of a greater degree of physical residual functioning than found by
Patel. The ALJ could and did rely, in large part, upon the records of Tedder and Patel. The ALJ did
not rely upon the opinion offered by a state agency medical professional, who opined Whitlock
could perform less than sedentary work. The ALJ did view as very persuasive the non-examining
state psychological consultant who found Whitlock’s mental impairments were non-severe.
The ALJ also considered Whitlock’s testimony and other factors in arriving at his RFC. He
thoroughly examined Whitlock’s Function Report and her Pain Questionnaire, noting she reported
in October 2016 taking no medications for her alleged disabling conditions. Also, the ALJ observed
that Whitlock left her most recent job for reasons other than disability. Ceasing work for reasons
other than alleged disability undermines a claimant’s claim that her impairments are disabling. Goff
v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005).
Based upon the record before him, the ALJ could make the RFC assessment that he did, and
substantial evidence supports his findings. Reversal of the ALJ is not appropriate
“so long as the ALJ's decision falls within the ‘available zone of choice.’ ” Bradley
v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008) (quoting Nicola v. Astrue, 480 F.3d
885, 886 (8th Cir.2007)). The decision of the ALJ “is not outside the ‘zone of choice’
simply because we might have reached a different conclusion had we been the initial
finder of fact.” Id. (quoting Nicola, 480 F.3d at 886). Rather, “[i]f, after reviewing
the record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ's findings, the court must
affirm the ALJ's decision.” Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.2005).
Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008).
Error in finding Whitlock could perform her past relevant work:
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Elmore opined that Whitlock’s past work, such as her prior job as a case aide, was performed
at the light exertional level. For her final argument, Whitlock maintains “the record does not support
an RFC for light work. Accordingly, the record does not support a finding Ms. Whitlock could
perform her past relevant light exertional work.” Docket entry no. 11, page 24. The essence of this
argument is error in determining her RFC. This argument has been fully addressed in our discussion
of Whitlock’s third and fourth claims. Since there was no error in the RFC determination, it follows
that there is no error in the ALJ’s finding that Whitlock could perform her past light work.
Saul’s ultimate decision was supported by substantial evidence. The Court is mindful that its
task is not to review the record and arrive at an independent decision, nor is it to reverse if some
evidence supports a different conclusion. The test is whether substantial evidence supports the
ALJ’s decision. See, e.g., Byes v. Astrue, 687 F.3d 913, 915 (8th Cir. 2012). This test is satisfied in
this case.
IT IS THEREFORE ORDERED that Saul’s final decision is affirmed and Whitlock’s
complaint is dismissed with prejudice.
IT IS SO ORDERED this 4th day of October, 2019.

UNITED STATES MAGISTRATE JUDGE

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