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Rogers v. Berryhill

United States District Court, S.D. Florida

November 5, 2017

PAULETTE MAUREEN ROGERS, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          WILLIAM C. TURNOFF, UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE is before the Court upon the parties' cross-motions for summary judgment. (ECF No. 24, 25). This case was referred to the undersigned by the Clerk of Courts for ruling on all pre-trial, non-dispositive matters. (ECF No. 3). Upon review of the administrative record, including a transcript of the administrative proceedings, the exhibits, the filings of the parties, the applicable law, and being otherwise duly advised in the premises, the undersigned makes the following findings of fact and conclusions of law.

         Procedural Background

         On October 1, 2012, Plaintiff Paulette Maureen Rogers applied for Disability Insurance Benefits (DIB), and Supplemental Security Income Disability benefits (SSI), under the Social Security Act, alleging disability from September 17, 2012. [Tr. 219-40].[1] The applications were denied initially and upon reconsideration. [Tr. 62-154, 158-67, 169-70]. Thereafter, Rogers requested an administrative hearing, which was held before Administrative Law Judge ("ALJ") Salena Bowman-Davis, on September 5, 2014. [Tr. 41-61, 171]. Plaintiff was represented by counsel and testified. A vocational expert ("VE"), Lisa Goudy, also testified. On December 18, 2014, the ALJ found that Rogers was not disabled. [Tr. 21-31]. The Appeals Council denied Rogers' request for review on March 24, 2016. [Tr. 1-5]. This appeal followed.

         Background

         Rogers was 51 years old as of the date of the administrative decision. [Tr. 45, 319]. She has a college education and past relevant work as a secretary. [Tr. 47-48, 292]. She alleged inability to work since September 27, 2012, due to trauma from a fall, depression, right shoulder surgery, high blood pressure, and diabetes. [Tr. 47, 291].

         Prior to the alleged onset date, in November 2011, Rogers injured her face and right wrist in a slip-and-fall accident. [Tr. 521, 569]. As a result, she experienced pain in the neck, lower back, right wrist, and right shoulder. Id. Rogers underwent a right shoulder arthroscopy and rotator cuff repair with orthopedist Nile R. Lestrange, M.D., in March 2012, which resulted in some improvement. [Tr. 528, 530]. Due to continued stiffness and pain, she underwent a right shoulder manipulation, under anesthesia, for release of capsulitis, in July 2012. [Tr. 539, 541, 549]. In August 2012, Dr. Lestrange gave Rogers a final disability rating of 7% permanent physical impairment of the body as a whole for the right shoulder, 3% permanent physical impairment of the body as a whole for the cervical spine, and 6 to 7% permanent physical impairment of the body as a whole for the lumbar spine, half of which existed prior to the accident. [Tr. 545-46].

         At a follow-up visit on September 28, 2012, Dr. Lestrange observed increased pain with range of motion testing and abnormal straight leg raising. [Tr. 547-48]. Rogers claimed a pain level of 10 on a scale of 1 to 10. [Tr. 547]. Dr. Lestrange prescribed pain medication and referred her to Lawrence M. Alexander, M.D., for further evaluation of the cervical spine. [Tr. 548].

         Rogers visited Dr. Alexander in October 2012, complaining of right-side shoulder and neck pain and significant low back pain. [Tr. 549-51]. Upon physical examination, Dr. Alexander observed that Rogers had 5/5 strength through the upper and lower extremities, tenderness along the supraspinous musculature of the right shoulder and low back, and some impingement signs involving the right shoulder. [Tr. 551]. He recommended a cervical epidural injection for the neck pain, as well as an L3-4 transforaminal lumbar interbody fusion for the back and leg pain. [Tr. 551]. Rogers underwent same in November 2012. [Tr. 560-62].

         On January 8, 2013, Rogers reported to Dr. Alexander that, although her leg pain was better, her back pain was not. [Tr. 804]. At the time, she was undergoing rigorous physical therapy. Id. Dr. Alexander observed that Rogers had 5/5 strength and intact sensibility in the lower extremities, and that she may have been over-exuberant with physical therapy. [Tr. 804]. He postponed further therapy and scheduled to see her again in approximately one month. [Tr. 804].

         Two days later, on January 10, 2013, Dr. Alexander completed a Physician's Report for the Florida Retirement System in support of Rogers' application for disability retirement identifying her primary disabling condition as lumbar disc herniations, and the secondary condition as status post transforaminal lumbar interbody fusion to the L3 and L4 levels. [Tr. 592]. Dr. Alexander noted that Rogers had severe limitation of functional capacity and was permanently incapable of any kind of work. Id. He further noted that Rogers' condition had not yet stabilized, and that she had not yet reached maximum medical improvement. Id.

         Rogers saw Dr. Alexander again on February 5, 2013. [Tr. 819]. She reported continuing back and leg pain, but was doing better overall. Id. Dr. Alexander noted that her lower extremities were neurovascularly intact, that she had 5/5 strength, and that her straight-leg raise was negative. [Tr. 819]. Rogers returned on April 9, 2013, with continuing back pain made worse by bending, lifting, and twisting. [Tr. 820]. Dr. Alexander noted that Rogers had 5/5 strength and intact sensibility in the lower extremities. Id. He recommended that she continue with activities, as tolerated, and work on a home core-strengthening program. Id. At a follow-up visit on July 9, 2013, she reported back pain that was tolerable. [Tr. 821 ]. Dr. Alexander observed that Rogers was doing better and recommended that she continue with her exercise program. Id.

         Rogers saw Dr. Alexander again on September 3, 2013, after having visited the emergency room with severe right-side low back pain after moving objects around her bathroom. [Tr. 822]. Dr. Alexander recommended muscle relaxants, anti-inflammatory medication, and Percocet for symptomatic relief opining that Rogers would "get better uneventfully." Id. Rogers returned to Dr. Alexander in January 2014, reporting continued back pain made worse by bending, lifting, and twisting, but no lower extremity symptoms. [Tr. 823]. Dr. Alexander opined that Rogers was limited to lifting no more than 10 lbs., standing no more than 30 minutes at a time, and sitting no more than 45 minutes at a time. Id. In June 2014, Dr. Alexander recommended that Rogers continue activities, as tolerated, and refilled her medications. [Tr. 930].

         Rogers was also under the care of neurologist Barry J. Cutler, M.D. [Tr. 567-68, 579-84]. In October 2012, Dr. Cutler observed that Rogers' back had a good range of motion and no tender areas. [Tr. 567]. Rogers saw Dr. Cutler again in December 2012 and reported worsening headaches, for which he prescribed medications. [Tr. 579-80].

         Beginning in June 2012, Rogers received mental health treatment from psychiatrist Joseph W. Poitier, M.D. [Tr. 519-20]. On September 27, 2012, Rogers reported that she was depressed. [Tr. 515]. Dr. Poitier diagnosed major depressive disorder, moderate and recurring, and assigned a global assessment of functioning ("GAF") score of 55. [Tr. 515]. He continued her medication regimen. [Tr. 515]. Rogers treated with Dr. Poitier on a regular basis through June 2014. [Tr. 602-11, 854-61, 899, 937-40]. Throughout this time, she continued to complain of depression, and Dr. Poitier's observations remained largely unchanged. [Tr. 602-11, 854-61, 899, 937-40].

         Medical Examinations

         In June 2014, Oscar Farmati, M.D., a medical expert, responded to medical interrogatories upon request of the ALJ. [Tr. 907, 920-28]. He opined that Rogers' impairments did not meet or equal any impairment described in the listings. [Tr. 921]. Rogers could lift and carry up to 10 lbs. frequently; could sit for 2 hours at a time and 6 hours total in an 8-hour workday; could stand for 30 minutes at a time and 1 hour total in an 8-hour workday; and could walk for 30 minutes at a time and 1 hour total in an 8-hour workday. [Tr. 923-24]. He opined that Rogers could frequently reach, handle, feel, push, and pull with her right hand, continuously use her left hand, and occasionally operate foot controls bilaterally [Tr. 925], could never climb ladders or scaffolds or crawl and could occasionally perform other postural activities [Tr. 926], but could never tolerate exposure to unprotected heights or commercial driving, occasionally tolerate exposure to humidity/wetness, extreme cold and heat, and vibrations, and frequently tolerate exposure to moving mechanical parts. [Tr. 927].

         Hearing Testimony

         Rogers testified that she retired from her position as a secretary with Miami-Dade County, in 2012, after her fall and due to depression. [Tr. 47-48]. She can dress herself but needs assistance with anything behind her body. [Tr. 50]. She cannot bend over or reach overhead. [Tr. 52, 54]. She drives only when necessary. [Tr. 50].

         Rogers testified that, while the prescription medications improve her severe pain, they cause her drowsiness. [Tr. 52]. By the same token, the psychiatric medications help her mood but make her very calm. [Tr. 55]. However, if she does not take her medications, she is prone to behavioral outbursts and has trouble concentrating. [Tr. 55].

         According to the VE's testimony, Rogers' previous work as a secretary was a sedentary, SVP 6, skilled listing in the DOT. [Tr. 58]. The ALJ presented the VE with the following hypothetical: lift/carry, push/pull no more than 10 lbs frequently; sit for 6 hours with normal breaks; postural adjustments at workstation; stand/walk up to 1 hour for 30 minutes at a time; no overhead reaching on the right; no limitations with use of hands on the left; occasional operation of foot controls bilaterally; occasional climbing of stairs/ramps; no climbing of ladders/scaffolds; occasional balancing, stooping, kneeling, and crouching; no crawling; avoid exposure to unprotected heights; no commercial driving; occasional exposure to humidity/wetness, dust, odors, fumes, pulmonary irritants, extreme temperatures, and heavy vibrations; no high production quotas or fast-paced work environment; no more than superficial interaction with the public. [Tr. 58-59]. With all the limitations stated by the ALJ, the VE found that Rogers could still perform her past work. [Tr. 59]. However, when the ALJ inquired if being off-task 10% of the time and when claimant's counsel asked if two or three absences a month would present a problem for sustaining employment, the VE noted that it would be difficult to sustain employment. [Tr. 59-61].

         Applicabl ...


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