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Rogers v. Berryhill

United States District Court, D. Delaware

June 19, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]



         The 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.[2] (D.I. 21, 22.) The court has jurisdiction pursuant to 42 U.S.C. § 405(g).[3]

         Rogers 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.[4](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.)


         A. Prior Decision

         Rogers 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. 24.)

         Claim 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.

         B. Plaintiffs Testimony

         Rogers 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. at 60-63.)

         When 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. (Id.)

         Rogers 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.)

         Rogers 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 64.)

         C. Plaintiffs Medical History, Condition, and Treatment

         1. Medical

         Following 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.[5] (D.I. 16-8 at 20, 27-65.)

         On 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 changes. (Id)

         In April 2010, Rogers presented to R.P. DuShuttle, M.D. ("Dr. DuShuttle"), who had last evaluated Rogers in 2007, [6] 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.)

         Rogers 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.)

         Rogers 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.)

         In 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.)

         A May 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, 78-79.)

         Rogers 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 ...

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