United States District Court, D. Delaware
KATINA A. ROGERS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
R. Fallon, United States Magistrate Judge.
Katina A. Rogers ("Rogers") filed this action on
April 1, 2016 against defendant Nancy A. Berryhill, the
Acting Commissioner of the Social Security Administration
(the "Commissioner"). Rogers seeks judicial review
pursuant to 42 U.S.C. § 405(g) of the Commissioner's
June 25, 2014 final decision, denying Rogers' claim for
supplemental security income ("SSI") under Title
XVI of the Social Security Act (the "Act"), 42
U.S.C. §§ 1381-1383f. The court has jurisdiction
over the matter pursuant to 42 U.S.C. § 405(g).
before the court are Rogers' and the Commissioner's
cross-motions for summary judgment. (D.I. 12; D.I. 14) Rogers
asks the court to enter an award of benefits. (D.I. 16 at 16)
The Commissioner requests the court affirm the ALJ's
decision. (D.I. 15 at 18) For the reasons set forth below,
the court recommends denying Rogers' motion for summary
judgment, and granting the Commissioner's cross-motion
for summary judgment.
filed a SSI application on July 20, 2011, claiming a
disability onset date of May 1, 2010. (Tr. at 224) Her claim
was initially denied on May 7, 2012, and denied again after
reconsideration on January 31, 2013. (Id. at 93-127)
Rogers then filed a request for a hearing, which occurred on
April 3, 2014. (Id. at 47-92) On June 25, 2014, the
Administrative Law Judge, Judith A. Showalter (the
"ALJ"), issued an unfavorable decision, finding
that Rogers was not disabled under the Act. (Id. at
30-41) The Appeals Council subsequently denied Rogers'
request for review on February 2, 2016, rendering the
ALJ's decision the final decision of the Commissioner.
(Id. at 1-4) On April 1, 2016, Rogers brought a
civil action in this court challenging the ALJ's
decision. (D.I. 2) On October 24, 2016, Rogers filed a motion
for summary judgment, and on November 18, 2016, the
Commissioner filed a cross-motion for summary judgment. (D.I.
12; D.I. 14)
Health history prior to relevant period
was born on July 5, 1972, and was thirty-seven years old on
her alleged onset date. (Tr. at 93) Rogers is considered a
younger person. 20 C.F.R. § 404.1563(e). Rogers is a
high school graduate. (Id. at 60) Since 1998, Rogers
has had past relevant work as a food preparation worker, a
grocery store cashier, and as a sanitation worker in a
chicken plant. (Id. at 87, 185) However, as of 2009,
Rogers has not reported any wages earned. (Id. at
July 2010 through most of 2011, Rogers went to the emergency
room, at least nine times, to seek treatment for various
symptoms. (Id. at 250-628) Rogers sought treatment
for abdominal pain, nausea, vomiting, and menstrual
dysfunction. (Id.) In September 2010, Rogers had a
total abdominal hysterectomy. (Id. at 347)
Health history during relevant time period
September 2011, Rogers was diagnosed with severe
sepsis by Dr. Preachess Vellah. (Id. at
615) Furthermore, in September 2011, Dr. Abraham Scheer noted
that Rogers has a history of alcohol and drug abuse.
(Id. at 625-629) Dr. Scheer further noted that
Rogers' family said that she has an addiction to Vicodin.
(Id. at 626) On September 1, 2011, Rogers had a
biopsy of her lungs that showed some buildup of tissue.
(Id. at 635) On September 13, 2011, Dr. Scott
Olweiler questioned whether Rogers may be injecting drugs
through her ported catheter that was implanted for her
frequent treatment of pancreatitis. (Id. at 634)
Rogers denied any history of injection drug use.
(Id. at 637)
March 21, 2012, Rogers filled out an Adult Function Report.
(Id. at 208-215) Rogers stated she often stays at
home unless she has a doctor's appointment. (Id.
at 208) She stated she cannot pick up a lot of objects,
because of a previous back injury. (Id.) Rogers
noted that it takes her awhile to get dressed, and it is hard
for her to bend over to put her shoes on. (Id. at
209) Rogers said her daughter helps her with her hair.
(Id.) She said her family reminds her to take her
medicine. (Id. at 210) Rogers said she sometimes
prepares her own meals, but prefers not to cook most of the
time. (Id.) She said she is able to do light
dishwashing, and can fold laundry while sitting.
(Id.) Rogers stated she is able to leave the house
alone, but does not go out frequently. (Id. at 211)
Rogers noted that her daughter often buys groceries for her,
but she does accompany her daughter to the store at times.
(Id.) She said she is able to manage her own
financial affairs. (Id.) Rogers said she does spend
time with others, but that it has become more difficult for
her to leave the house for social purposes. (Id. at
212-213) Rogers noted that she is able to follow written and
spoken instructions "pretty well" depending on how
she feels at the time. (Id. at 213)
2012, disability expert, Paul Taren, Ph.D., conducted an
evaluation and prepared a report for the purpose of
Rogers' disability determination. (Id. at 93-99)
Dr. Taren conducted a psychiatric review technique (PRT).
(Id. at 97) Dr. Taren concluded that Rogers was not
disabled due to "insufficient evidence" to evaluate
the limitations under the "paragraph B" criteria of
the listings. (Id. at 97)
September 13, 2012, Rogers received a warning letter from Dr.
Howard Arian, her pain management doctor, due to Rogers
receiving narcotics from another doctor. (Id. at
1045) The letter concluded that Rogers would be discharged
from Dr. Arian's care if she did not comply with the
warning letter. (Id.)
November 19, 2012, Rogers sought treatment at Kent General
Hospital due to abdominal pain and vomiting. (Id. at
1004-1015) Dr. David Zamara noted that Rogers was
"alert, oriented, and fully verbal." (Id.
at 1005) Dr. Zamara stated that Rogers' mood and effect
was normal. (Id. at 1008) Rogers was diagnosed with
nausea with vomiting and chronic abdominal pain.
January 2013, a second disability expert, Christopher King,
Psy.D., conducted an evaluation and prepared a report for the
purpose of Rogers' disability determination.
(Id. at 108- 109) Dr. King noted that Rogers states
she has problems concentrating and getting along with others,
and was recently hospitalized with delusions secondary to
intense pain. (Id. at 108) However, Dr. King stated
that Rogers' statements were not entirely credible.
(Id.) He concluded that Rogers does not have a
history of formal mental health treatment, and exhibits no
indication of a diagnosable depressive disorder.
(Id.) However, he noted that Rogers' records
reflect a history of anxiety symptoms. (Id.) Dr.
King stated there is no evidence of any appreciable deficits
in concentration or social functioning. (Id. at 109)
Dr. King concluded that Rogers has a non-severe mental
25, 2013, Rogers sought treatment at Nanticoke Memorial
Hospital for an "altered mental status" due to a
seizure possibly related to a sudden discontinuing of pain
medication. (Id. at 1118) A CT scan of the brain
showed no acute abnormalities and no major abnormalities.
(Id. at 1119) Rogers was prescribed Dilantin and
benzodiazepine, as needed, for the treatment of seizures and
2013, Rogers sought treatment at Kent General Hospital for
severe nausea, vomiting, and abdominal pain. (Id. at
1118) After four days at the hospital, on July 11, 2013,
Rogers was transferred to Dover Behavioral Services
("DBS") for suicidal ideations. (Id. at
1090) Rogers tested positive for cocaine and opiates, and had
a GAF score of 20 at the time of her arrival. (Id.
at 1088) She was discharged on July 18, 2013, with a
diagnosis of major depressive disorder, and a GAF score of
55. (Id.) At the time of discharge, Dr. Anil Meesala
noted that Rogers was stable, and was prescribed
antidepressant medication. (Id. at 1089)
24, 2013, Rogers was readmitted to DBS for suicidal
ideations. (Id. at 1093- 1099) At the time of her
admission, Rogers had a GAF score of 40, and tested positive
for drugs including barbiturates and oxycodone. (Id.
at 1093-1098) The nurse practitioner noted that Rogers had
recently found out that her cousin had been shot and killed.
(Id. at 1094) Rogers was discharged on August 6,
2013, with a diagnosis of major depressive disorder, and with
an unknown GAF score. (Id. at 1093) Rogers was also
assigned to group and family therapy sessions through
Recovery Innovations. (Id. at 1098)
August 11, 2013, Rogers was readmitted to DBS for suicidal
ideations. (Id. at 1100-1104) At the time of her
admission, Rogers had a GAF score of 25. (Id. at
1103) Rogers was discharged on August 21, 2013, with a
diagnosis of major depressive disorder, and a GAF score of
50. (Id. at 1100)
August 29, 2013, Rogers was readmitted to DBS for suicidal
ideations and worsening of depressive symptoms. (Id.
at 1103-1109) At the time of her admission, Rogers had a GAF
score of 30. (Id. at 1109) Dr. Meesala noted that
Rogers benefitted from both group and family therapy
sessions, and noticed an improvement in Rogers' overall
mood. (Id. at 1106) Rogers was discharged on
September 19, 2013, with a diagnosis of a mood disorder, and
a GAF score of 60. (Id. at 1100)
September 3, 2013, Rogers received a letter from Dr. Arian
stating Rogers was discharged as a patient, and was no longer
allowed on the premises, because she received controlled
substances from multiple physicians from September 4, 2012
through August 22, 2013. (Id. at 1453) However, Dr.
Arian would later re-accept Rogers as a
September 24, 2013, Rogers was admitted to DBS for ongoing
depressive issues. (Id. at 1115-1116) Rogers was
discharged to a Partial Hospitalization Program
("PHP") on September 27, 2013, with a diagnosis of
a mood disorder, and a GAF score of 25. (Id. at
1115) On October 17, 2013, Rogers was discharged from the PHP
with a diagnosis of a mood disorder and a GAF score of 50.
(Id. at 1110) At the time of her discharge, Rogers
was given a follow-up appointment with nurse practitioner,
Alma Surratt, and was signed up for an individual therapy
appointment. (Id. at 1111)
October 31, 2013, Rogers began treatment at ABR Counseling
Associates of Kent County ("ABR"). (Id. at
1242-1244) At ABR, Rogers was diagnosed with bipolar
disorder. (Id.) Rogers was prescribed Xanax,
Lamictal, and Ambien. (Id.)
March 18, 2014, Dr. Arian completed an evaluation of
Rogers' physical and mental well-being. (Id. at
1558-1561) Dr. Arian diagnosed Rogers with
lumbago, and stated her symptoms would likely last
12 months. (Id.) He stated that emotional factors
contribute to the severity of Rogers' symptoms and
physical limitations. (Id.) Dr. Arian noted that
depression affects Rogers' symptoms, however, he noted
that he is "not an expert in psychological
diagnosis." (Id. at 1559) Dr. Arian further
noted that Rogers' symptoms would impact her attention
and concentration, causing her to be off-task for 20% of the
workday. (Id. at 1561) Dr. Arian opined that Rogers
would probably miss about two days of work per month due to
her impairments. (Id.) He stated that Rogers is
capable of handling "moderate stress" in the
workplace. (Id.) He concluded that Rogers manifests
an "undefined psychological disturbance."
15, 2014, Connections Community Support Programs provided
Rogers with a case management service provider to coordinate
her care with medical and mental health professionals, for
the purpose of reducing her emergency room usage.
(Id. at 245)
Hearing Before the ALJ
testified that she became unable to work in 2008, because she
physically could no longer do the work required. (Tr. at
62-63) She stated that her inability to focus limits her
capability to work the most. (Id.) She explained
that her ability to concentrate is terrible, and she
sometimes forgets to take her medication. (Id. at
69) Rogers explained that she has been diagnosed with severe
mental depression and bipolar disorder. (Id. at 63)
Rogers stated that she tried to commit suicide eight or nine
years ago. (Id.) In July of 2013, Rogers said she
struggled with drug and alcohol abuse. (Id. at 65)
She testified that she no longer uses illegal drugs.
(Id. at 72) Rogers stated that she has been
receiving counseling services since October 2013.
(Id. at 66) Rogers stated that she takes
eleven different medications. (Id. at 70) She said
the therapy has not made her feel better mentally.
(Id. at 67) Rogers said she becomes angry at herself
at times, has paranoid thoughts, and experiences mood swings.
(Id. at 70-71) Rogers said she sometimes thinks she
is hearing voices. (Id. at 71) Rogers explained that
she also has problems sleeping. (Id.)
explained that she also has lower back pain ever since she
slipped and fell a few years ago. (Id. at 75) Rogers
said she received an injection in her back in 2013.
(Id.) Rogers explained that she currently receives
physical therapy for her back. (Id. at 76) Rogers
said she takes ten milligrams of Oxycodone and uses a
Fentanyl patch for her back pain. (Id.) She said her
back hurts when she sits, stands, and walks. (Id. at
77) Rogers said she also has nerve damage in her leg.
(Id.) Rogers testified that she gets seizures, and
takes medication for them. (Id. at 78-79) Rogers
also explained that she has really serious acid reflux, and
takes medication for the symptoms. (Id. at 72-73) In
2011, Rogers explained that she had a biopsy on her lungs,
and now uses an inhaler. (Id. at 74) She explained
that she uses the inhaler frequently. (Id. at 75)
testified that she could probably stand between 15 and 30
minutes at a time. (Id. at 81) She explained that
she has a hard time sitting down. (Id.) Rogers
testified that her pain management specialist said she should
not lift more than ten pounds at a time. (Id. at 82)
Rogers explained that if she drops something, she often has
someone else pick up the item for her. (Id.) Rogers
said her ability to take care of her personal hygiene depends
on how she feels at the time. (Id. at 83) She said
she sometimes makes her own meals. (Id.) She
testified that she does not make her bed or change the bed
sheets, so she just lays on top of her bed. (Id.)