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Waffle v. Commissioner of Social Security

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

September 26, 2016

HOPE A. WAFFLE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Defendant.


          Susan Collins, United States Magistrate Judge

         Plaintiff Hope A. Waffle appeals to the district court from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application under the Social Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).[1] (See DE 1). For the following reasons, the Commissioner's decision will be REVERSED, and the case will be REMANDED to the Commissioner for further proceedings in accordance with this Opinion and Order.


         Waffle applied for DIB and SSI in March 2012, alleging disability as of July 6, 2009. (DE 10 Administrative Record (“AR”) 11, 146, 156). The Commissioner denied her applications initially and upon reconsideration. (AR 80, 84, 94, 101). Waffle requested a hearing before an Administrative Law Judge (AR 108), and Administrative Law Judge Patricia Melvin (“the ALJ”) held a hearing on May 1, 2013, at which Waffle was represented by counsel (AR 33). On June 17, 2013, the ALJ issued an unfavorable decision, finding that Waffle was not disabled because she was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. (AR 18-19). Waffle requested the Appeals Council review the ALJ's decision (AR 6-7), and the Appeals Council denied Waffle's request, making the ALJ's decision the final, appealable decision of the Commissioner (AR 1-4).

         Waffle filed a complaint with this Court on October 15, 2014, seeking relief from the Commissioner's final decision. (DE 1). In this appeal, Waffle alleges that the ALJ erred by: (1) improperly evaluating Waffle's mental limitations; (2) failing to include limitations in the hypothetical questions posed to the vocational examiner that sufficiently described Waffle's mental limitations and her ability to work for a full 40-hour work week; (3) improperly evaluating Waffle's credibility; and (4) failing to give proper weight to the opinions of Waffle's treating and examining physicians. (DE 19 at 6-15).


         A. Background

         At the time of the ALJ's decision, Waffle was 46 years old. (AR 36). She has an eighth-grade education, which included special education classes. (AR 37, 204). Her employment history includes work as a manager of a Subway restaurant from 1996 through 2006, and part-time work as a waitress at a Pizza Forum restaurant from 2011 to present. (AR 38-39, 204).

         B. Waffle's Testimony at the Hearing

         At the hearing, Waffle testified that she lived with her 13-year-old son in an apartment. (AR 36). She is divorced. (AR 36). Waffle is five feet, four inches tall and weighs 180 pounds. (AR 36). She explained that she had gained about 10 pounds in the last few weeks before the hearing, which she attributed to not doing much at home. (AR 36). Waffle left school after the eighth grade, and she is able to read slowly and do basic math, but she has trouble spelling. (AR 37).

         Waffle receives child support and food stamps; she gets health insurance through the Healthy Indiana Plan; and she works part time at the Pizza Forum restaurant, where she waits tables and delivers pizza. (AR 38). She works about nine hours per week, and although she has worked more hours per week in the past, she has never worked more than 20 hours per week at Pizza Forum. (AR 38). Waffle carries drinks and plates of food to customers at their tables; she can carry one plate at a time, and she can carry a round tray with three cups on it when she uses two hands. (AR 39). She estimates that the tray with drinks weighs maybe two pounds. (AR 39).

         When Waffle worked at Subway, she was initially just an employee for the first year. (AR 39). When she was an employee, she made sandwiches; closed the restaurant; worked split shifts to cover the lunch rush; swept the floors; mopped; and did dishes. (AR 39). When she was an employee, she estimated that she would lift maybe five or ten pounds at a time. (AR 39). When she became the manager of Subway, she had to put the food away that was unloaded from the delivery trucks. (AR 40). The containers of food weighed up to 50 pounds. (AR 40). As the manager, Waffle was working up to 45 hours per week. (AR 40).

         Waffle left work at Subway in 1999 and briefly worked at Dairy Queen for a few months. (AR 41-42). She stopped working at Subway because she had just had a baby and the restaurant had gone under new management, which made her nervous. (AR 42). She returned to Subway later in 1999 because they asked her to come back. (AR 42). She was later fired from Subway due to sales, labor, and food costs. (AR 42). Waffle has looked for full-time work as a cashier since she stopped working for Subway. (AR 42).

         In Waffle's opinion, the most severe problem she has that is causing her to be unable to work is her neck and shoulder pain. (AR 43). She has a bulging disc in her neck and a tear in her rotator cuff, which causes her to be in pain all of the time. (AR 43). Waffle was in pain while sitting in the hearing. (AR 43). Her shoulder and neck first started hurting in 2009, when she tore her rotator cuff. (AR 43). Her pain is in the back of her neck down into her shoulder and shoulder blade. (AR 43-44). She has constant pain in both her neck and shoulder, which she rates as a five on a scale of 10. (AR 44).

         Waffle has had about 13 injection treatments, and she has also had three surgeries on her shoulder, one surgery on her elbow, and one surgery on her wrist. (AR 44). She takes Lortab and Mobic for her pain. (AR 44). She takes her pain medication before she goes to work and again when she gets home from work. (AR 44). The pain medication helps her somewhat; her pain is a three out of 10 while she is working if she takes her pain medication. (AR 45). If she works three days in a row, her pain goes up to an eight out of 10. (AR 45). Moving around makes her neck and shoulder pain worse. (AR 46). She has gone to physical therapy, but it made her hurt more. (AR 46). Lying down to take the pressure off her neck and reclining in her chair also help with her pain. (AR 46).

         Waffle's next biggest impairment is with lifting. (AR 47). Lifting hurts her neck and her arms. (AR 47). She cannot lift very much; she cannot lift a gallon of milk to pour it. (AR 48). Even just making the motion of pouring a gallon of milk during the hearing hurt her arm to turn it inward. (AR 48). She can pick up something if it is beside her, but she cannot pick it up if it is away from her. (AR 48). Waffle also has tingling and numbness in her fingers, which is caused by her neck. (AR 48). She has tingling in her fingers about three or four times everyday, but it does not last all day. (AR 48). When she tries to use her hand, such as when she is trying to cut pizza, it causes pain in her two last fingers. (AR 49). The pain in her fingers sometimes lasts all day, and Waffle estimated the pain to be a four out of 10. (AR 49). Waffle also has problems with her strength, caused by her neck and shoulder. (AR 49). She has lost the strength in her arm; she can no longer grip like she used to. (AR 49). She cannot open things without using a gripper. (AR 49).

         Waffle also has a learning disability, which causes her problems with spelling, reading, and math. (AR 49-50). She was first diagnosed as learning disabled in first grade. (AR 50). She was in special education classes for all her academic subjects, but she took regular elective classes like gym and home economics. (AR 50). Waffle did not think her learning disability affected her work at Dairy Queen because she did not have to do anything at Dairy Queen. (AR 50). Her learning disability did affect her work at Subway, however, because she had a hard time spelling. (AR 50). She would have to call a family member for help with spelling, such as when she had to write up an employee or post notes. (AR 50). When she had to take tests, her son would download the test so that Waffle could listen to the questions in order to take the test. (AR 50). At the pizza restaurant, Waffle explained that the owner overlooks her inability to spell street addresses or customer names for delivery orders. (AR 50-51). She sometimes has a hard time delivering pizzas if she does not know where she is going, because she does not know how to read maps. (AR 51). The owner of the restaurant will help Waffle by telling her how to get to the delivery location. (AR 51). Waffle can read some of the street signs, but not all of them. (AR 51).

         Waffle stated that she does not think she has any problems that keep her from being able to work. (AR 51). Waffle explained that she can walk for a few blocks; she can stand for a half an hour at a time; she can sit for one to two hours before needing to lie down; she can lift 25 pounds when she uses both hands; she can lift five pounds with just her right hand; she can lift 10 pounds with just her left hand; she is right handed; she can push and pull some with her arms, although she cannot move her furniture; she can reach overhead with her left arm but not her right; she can grip things like silverware, cups, glasses, doorknobs, and a steering wheel with her hands, but she cannot open things; she can use her fingers to fasten buttons, zippers, and shoelaces; she can feel with her fingertips; she can push a pedal with her legs; she can climb stairs, but not a lot of stairs; she can bend over and touch her knees and her toes; she has no problems with balance; she can get herself dressed; she can get in and out of the shower by herself; she has a driver's license; she took the written version of the driver's license test; she drives everyday that she goes to work; she drives for 20 miles in a trip. (AR 51-54).

         She does the cooking for her household; she shops with her son; she does the dishes; she washes the laundry; her son folds the towels but she folds everything else; she changes and makes the beds; she does the vacuuming; she does the rest of the housework, such as scrubbing the bathrooms and kitchen; her son takes out the garbage and does the yard work. (AR 54-55). Waffle takes Mobic and Lortab, as well as Crestor and a depression medicine, but she had not taken the depression medication for over a month at the time of the hearing because she ran out of refills. (AR 55-56).

         An average day for Waffle consists of getting up out of bed; sitting and watching the news before going to work; working for three hours; then coming home and sitting in her recliner; when she starts hurting, she lies on the floor with a few pillows; when she feels better, she gets up and fixes her son something to eat; then she watches television. (AR 56). When she watches television, she sometimes sits, sometimes reclines, and sometimes gets on the floor. (AR 56). When she lies on the floor, it helps to relieve the pressure and pain. (AR 56-57). She lies on the floor for a half hour or so every couple hours. (AR 57). She reclines in her chair every couple of hours, maybe four or five times per day, for one to two hours at a time. (AR 57).

         Waffle has difficulty putting her right arm onto the table, because it causes pain including in her elbow. (AR 58). To relax, she has to put her arm into her lap. (AR 58). Her job at the Pizza Forum permits her to sit down when she is not waiting tables. (AR 58). She is able to take some time to rest her hands, and she is able to alternate between standing, walking, and sitting. (AR 58). She does not have to lift anything above five pounds. (AR 58). Her doctor currently has her restricted to working three hours per day; if she tried to work longer than that, she would be in more pain. (AR 59). Sometimes the pain makes her cry. (AR 59). Waffle cries just about every day. (AR 59). Her doctor also added a limitation that she cannot use anything that vibrates. (AR 59).

         Since Waffle was injured lifting five gallon syrup bags, which weighed 45 to 50 pounds, she has lost her independence. (AR 59-60). She does not get out with people as much and she does not talk to her mom. (AR 59-60). While she is able to drive, she drives with her left hand and just holds her right hand at the bottom of the steering wheel, with her thumb. (AR 65). She cannot keep her right hand at the top of the steering wheel. (AR 65). She cannot bathe in a bathtub because she cannot use her right arm to lift herself up to get out of the tub. (AR 65). When she vacuums and cleans the house, she vacuums with both hands, and she paces herself. (AR 65-66). She used to be able to clean the house in a couple of hours, but now it takes her all day, because she has to keep stopping. (AR 66).[3]

         C. Summary of the Relevant Medical Evidence

         Waffle claims that she became disabled on July 6, 2009, due to the combination of the bulging discs in her neck, a tear in her right shoulder rotator cuff, her right cubital tunnel and recurrent carpel tunnel syndrome, and her depression. (DE 19 at 2). Although Waffle claims to be disabled, she has continued to work, although at a reduced rate. (DE 19 at 2).

         Waffle has an eighth grade education, which included special education classes. (AR 204). Waffle was exempted from standardized testing, but in seventh grade, she placed in the second percentile for reading and the fourth percentile for math. (AR 285). Waffle has difficulty with basic math and reading, and ...

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