United States District Court, D. Delaware
JOSEPH EDWARDS ROGERS, JR. Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
plaintiff Joseph Edwards Rogers, Jr., ("Rogers"),
who appears pro se, appeals the decision of Nancy
Berryhill, Acting Commissioner of Social Security
("Commissioner"), denying his claim for disability
insurance benefits ("DIB") and Supplemental
Security Income ("SSI") under Titles II and XVI of
the Social Security Act, 42 U.S.C. §§ 401-433,
1381-1383f. The parties have filed cross-motions for summary
judgment. (D.I. 21, 22.) The court has jurisdiction
pursuant to 42 U.S.C. § 405(g).
protectively applied for DIB on March 31, 2010, and for SSI
benefits on May 8, 2012, alleging disability since September
1, 2009, due to a permanent back injury and
arthritis.(D.I. 16-2 at 21; D.I. 16-5 at 2-3; 16-6 at
53.) His claims were denied initially and upon
reconsideration. (D.I. 16-3 at 2-6.) Thereafter, Rogers
requested a hearing, which took place before an
administrative law judge ("ALJ") on June 21, 2012.
Counsel represented Rogers at the hearing, and Rogers and a
vocational expert ("VE") testified. (D.I. 16-2 at
36-72.) The ALJ found that Rogers is unable to perform his
past relevant work, but could perform simple, unskilled light
work as identified by the VE. (Id. at 21-31.) Rogers
sought review by the Appeals Council, but it denied his
request for review and, therefore, the ALJ's decision
became the final agency decision subject to judicial review.
(Id. at 2-5.) On March 10, 2014, Rogers, now
proceeding pro se, filed the current action for
review of the final decision. (D.I. 1.)
previously applied for DIB benefits. He received a partially
favorable decision by an ALJ on August 31, 2009, when he was
awarded benefits for the closed period of June 13, 2005
through September 19, 2007, after the ALJ found Rogers was
unable to perform even sedentary work due to a work related
back injury that required surgery in May 2006 and a period
for recovery and therapy. (D.I. 16-3 at 7-22.) Rogers sought
review by the Appeals Council, but it denied his request for
review and, therefore, the ALJ's decision became the
final agency decision subject to judicial review.
(Id. at 23-25.) There is no evidence that Rogers
sought judicial review of the 2009 decision. Rogers states,
"whether [he] followed proper court procedure or not
does not change the significance of the injury." (D.I.
preclusion, also known as res judicata, bars a claim
litigated between the same parties or their privies in
earlier litigation where the claim arises from the same set
of facts as a claim adjudicated on the merits in the earlier
litigation. Blunt v. Lower Merion Sch. Dist., 767
F.3d. 247, 277 (3d Cir. 2014). Claim preclusion applies to
Roger's disability status as of the date of the prior ALJ
decision (i.e., August 31, 2009). See 20
C.F.R. § 404.955 (2016) ("The decision of the
administrative law judge is binding on all parties to the
hearing . . . ."); 20 C.F.R. § 404.957(c)(1)
(explaining that res judicata applies where facts
and issues were already adjudicated in a final decision on a
prior application). Accordingly, to the extent that Rogers
contends that his disability continued after September 19,
2007 through the alleged onset date in this case
(i.e., September 1, 2009), the claim is barred.
was represented by counsel and testified at the hearing. At
the time of the hearing, Rogers was 51 years old, and
married. (D.I. 16-2 at 43.) He testified that he has a high
school diploma, a driver's license, and that drove
himself to the hearing. (Id. at 44.) He provided
descriptions regarding his past work from 1985 to the date of
the hearing. (Id. at 44-47.) Rogers testified that
in June 2012 he was hired to perform light duty work, one or
two days per week. (Id. at 48-49.) He further
testified that he was actively looking for work that he could
do with his restrictions, but was unable to find anything.
(Id. at 49-50.) Rogers testified that he could care
for his personal hygiene, prepare light meals, perform light
housework (dusting, sweeping, loading the dishwasher, and
laundry), run errands, and go grocery shopping. (Id.
questioned about his back condition, Rogers testified that he
received injections in 2005, 2006, 2007 and 2010, but has not
had any injections since November 2010 because they are not
working for him. (Id. at 51.) Rogers received
massage therapy in 2011, and it helped, but he no longer
receives this type of therapy. (Id.) He now
undergoes pain management. (Id.) Rogers takes
medication for his back, but not every day. (Id. at
52.) The medication upsets his stomach, causes drowsiness,
and makes him "a little slow on decisions."
(Id.) Rogers testified that he has chronic pain in
his back every day. (Id. at 52-53.) He also has a
lot of tightness with spasms. (Id. at 53.) With
medication, the pain is reduced to five on a scale of one to
ten, and without medication it is a seven. (Id.)
Treatment provides some relief. (Id.) At home,
Rogers uses hot baths, a heating pad, a TENS unit, every
afternoon he lies down with his feet up, and he does
stretches to relieve the pain. (Id. at 57-58.)
Rogers sees Dr. DuShuttle for his back condition.
(Id. at 51.) In May, 2012, Rogers was referred to
another physician for a second opinion for another back
surgery, but he does not wish to undergo the surgery.
also receives treatment for a mental condition. (Id.
at 53.) He does not take any medications for the condition,
but in the past has taken medication for anxiety.
(Id. at 54.) Rogers explained that he is trying not
to rely on medication. (Id.) Rogers testified that
due to his back condition, he has lost confidence and becomes
easily frustrated. (Id.) Rogers has difficulty
sleeping and takes natural medications to help with sleeping.
(Id. at 55.) He suffers from headaches which occur
every other day, or due to lack of sleep, and last a couple
of hours. (Id. at 65.) He has problems with his
memory, has no problems with mood swings, and is a little
paranoid. (Id. at 56.) Lately, he has heard a few
voices. (Id. at 57.) If he goes into a store, he has
anxiety and leaves. (Id.)
testified that he can stand, sit, and walk less than one hour
in an eight hour work day. (Id. at 58.) He has one
flight of stairs in his home, but falls frequently when using
them. (Id. at 58, 64.) He can lift ten pounds.
(Id. at 58.) He has a hard time bending, a really
hard time kneeling, no problem using his hands, and no
problem breathing. (Id.) Reaching over his head and
in front of him cause difficulty. (Id. at 65.)
Rogers testified that his restrictions only allow him to work
four hours a day performing sedentary work. (Id. at
Plaintiffs Medical History, Condition, and Treatment
a work-related accident, Rogers underwent a L4-5, L5-S1
discectomy due to disc herniation in May 2006. (D.I. 16-3 at
14.) He continued with pain management treatment provided by
Ganesh Balu, M.D. ("Dr. Balu"), and saw Antonio
Zarraga, M.D. ("Dr. Zarraga") from November 2008
through March 2010 with complaints of anxiety, depression,
and lower back pain. (D.I. 16-8 at 20, 27-65.)
August 31, 2009, Dr. Zarraga reported Rogers' limited
range of motion and an inability to bend the body due to back
pain, positive straight leg raising, sciatic tenderness, and
paraspinal pain with palpation. (D.I. 16-7 at 2.) He found
Rogers had a poor prognosis and a permanent disability that
could not be removed by treatment. (Id. at 3.) Dr.
Zarraga reported functional limitations of: walking less than
100 feet; climbing one to two flights of stairs; lifting ten
pounds or less; standing two hours or less; sitting two hours
or less; and avoiding reaching above the shoulder level,
stooping, bending, twisting, and temperature/humidity
April 2010, Rogers presented to R.P. DuShuttle, M.D.
("Dr. DuShuttle"), who had last evaluated Rogers in
2007,  for reevaluation of his back. (D.I. 16-9
at 19.) X-rays of the thoracic spine indicated mild
arthritis. (Id.) Upon examination, Rogers had full
flexion and extension with stiffness, no sciatic notch
tenderness/buttock pain/radiculopathy, straight leg raising
test was negative bilaterally, mild tightness, guarding, and
splinting in the thoracic area, and reflexes were
symmetrical. (Id.) In July 2010, Dr. DuShuttle noted
that Rogers reported an increase in back pain following yard
work. (D.I. 16-9 at 18.) Examination revealed full flexion
and extension with stiffness and bilateral sciatic notch
tenderness with no buttock pain or radiculopathy, straight
leg raising test was negative bilaterally, there was positive
tightness, guarding, and splinting, positive spasm, no neuro
or sensory deficits, and symmetrical reflexes. (Id.)
When Rogers was seen by Dr. DuShuttle a few weeks later, they
reviewed a July 16, 2010 lumbar MRI that revealed moderately
severe bilateral neural foraminal narrowing at L5-S1. (D.I.
16-9 at 27.) Upon examination, Rogers had decreased flexion
and extension, bilateral sciatic notch tenderness, positive
tightness/guarding/splinting with no buttock pain or
radiculopathy, straight leg raising tests were negative
bilaterally, reflexes were symmetrical, and there were no
neurological or sensory deficits. (Id.)
received treatment at Compassionate Pain Management beginning
in September 2010. (D.I. 16-12 at 2-45.) Nerve conduction
velocity and electromyogram studies of the right arm and leg,
conducted on November 19, 2010, were normal. (Id. at
26-33.) In a December 10, 2010 pain questionnaire, Rogers
indicated that his pain with medication was six to seven.
(Id. at 24.)
was seen by consultative examiner Joseph Schanno, M.D.
("Dr. Schanno") on November 16, 2010. (D.I. 16-9 at
28.) Rogers described persistent pain in the right hip and
back, radiating down his legs to just above the knee, more
common in the right leg, but occasional discomfort in the
left leg. (Id. at 29.) Dr. Schanno observed that
Rogers had a brisk gait and walked with no obvious limp, his
mental status examination was relatively normal, neurological
examination was within normal limits, cervical spine
examination was normal, shoulders and hips had full/normal
range of motion, and there was no paravertebral muscle spasm.
(Id. at 30-31.) Dr. Schanno opined that Rogers could
easily perform at a sedentary level of activity or even light
duty if so motivated. (Id. at 32.) On December 1,
2010, and June 16, 2011, State agency reviewing physicians,
Gurcharan Singh, M.D. ("Dr. Singh") and Joseph
Michel, M.D. ("Dr. Michel") opined that Plaintiff
could perform a limited range of unskilled light work. (D.I.
16-9 at 40-46, D.I. 16-10 at 26.)
March 2011, Rogers was examined by Dr. Zarraga who noted an
unremarkable neurological examination with limited motion in
the lumbar and lumbosacral spine, and referred Rogers to pain
management. (D.I. 16-10 at 13-14.) Rogers continued with pain
management through January 2012. (D.I. 16-12 at 2-45, 57-76.)
He continued to be seen by Dr. Zarraga, including visits on
August 2, 2011, September 22, 2011, May 4, 2012, and May 31,
2012. (D.I. 16-13 at 38-45.)
11, 2011 thoracic spine MRI revealed no disc herniation,
stenosis, alteration of the central canal or foramina, or
cord compression. (D.I. 16-12 at 48, 77.) An MRI of the
lumbar spine taken the same day, showed the previous
right-sided L5-S1 hemilaminectomy, mild epidural fibrosis in
the right lateral recess, contact of the right SI nerve root,
a disc extrusion at L4-5 extending superiorly from the disc
space level, and moderate stenosis. (Id. at 46-47,
returned to Dr. DuShuttle, on May 8, 2012, having last seen
him on July 27, 2010. (D.I. 16-13 at 3.) On that day, Dr.
DuShuttle, classified Rogers' work restrictions as
permanent sedentary light work, fours hours per day. (D.I.
16-12 at 87.) Dr. DuShuttle observed sciatic notch
tenderness, buttock pain to palpation, tightness, guarding,
and splinting, but reflexes were full and symmetrical, there
was no objective sensory deficit, straight leg raise was
negative, and there was a five to ten degree loss of flexion.
(D.I. 16-13 at 3.) On May 17, 2012, Dr. DuShuttle completed a
lumbar spine residual functional capacity questionnaire.
(D.I. 16-12 at 82-86.) He reported diagnoses of lumbar
stenosis, lumbar degenerative disc disease, and lower
extremity radiculopathy supported by MRI findings and noted a
fair prognosis. (Id. at 82.) Dr. DuShuttle reported
Rogers' complaints of pain and his findings of a five to
ten degree reduced range of motion, muscle spasm, muscle
weakness, tenderness, and crepitus. (Id. at 82-83.)
Dr. DuShuttle stated that Rogers can walk two city blocks
without rest or severe pain, can sit for more than two hours
and can stand for one hour before needing a break in an
eight-hour workday and, with normal breaks, can stand/walk
less than two hours and sit at least six hours. (Id.
at 83-84.) He also determined that Rogers needs to walk every
sixty minutes for ten minutes each time and will need to take
unscheduled breaks during an eight-hour work day.
(Id.) Dr. DuShuttle determined that Rogers can
occasionally lift ...