United States District Court, N.D. Indiana, Fort Wayne Division
HOPE A. WAFFLE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge
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”). (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.
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).
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).
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).
Waffle's Testimony at the Hearing
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).
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.
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.
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).
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
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).
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).
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).
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).
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).
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).
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).
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).
Summary of the Relevant Medical Evidence
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).
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 ...