United States District Court, S.D. Florida
REPORT AND RECOMMENDATION
WILLIAM C. TURNOFF, UNITED STATES MAGISTRATE JUDGE
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.
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]. 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.
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].
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.
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].
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].
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.
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.
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.
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].
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].
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,
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.
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].
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].
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].