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Rogers v. Berryhill

United States District Court, D. Delaware

August 28, 2017

KATINA A. ROGERS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security[1], Defendant.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff 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).

         Currently 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.

         II. BACKGROUND

         A. Procedural History

         Rogers 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)

         B. Medical History

         1. Health history prior to relevant period

         Rogers 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 169-170)

         From 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)

         2. Health history during relevant time period

         In September 2011, Rogers was diagnosed with severe sepsis[2] 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)

         On 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)

         In May 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)

         On 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.)

         On 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. (Id.)

         In 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 impairment. (Id.)

         On June 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 anxiety. (Id.)

         In July 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[3] 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)

         On July 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)

         On 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)

         On 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)

         On 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 patient.[4]

         On 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)

         On 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.)

         On 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[5], 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." (Id.)

         On May 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)

         C. Hearing Before the ALJ

         1. Rogers' testimony

         Rogers 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.)

         Rogers 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)

         Rogers 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.) Rogers ...


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