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Rogers v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

June 19, 2017

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


          Danny C. Reeves, United States District Judge

         Plaintiff Linda Rogers contends that the Administrative Law Judge (“ALJ”) assigned to her case erred by denying her claim for Disability Insurance Benefits (“DIB”). Specifically, she asserts that the ALJ failed to properly consider the opinion of her treating physician and failed to account for her mental impairments in calculating her Residual Functional Capacity (“RFC”). Rogers requests that the decision be reversed and a decision be entered awarding benefits. In the alternative, she requests that her case be remanded for a new hearing. [Record No. 10] The Commissioner of Social Security (“Commissioner”) contends that the ALJ properly considered the evidence of record and that the ALJ's decision should be affirmed. [Record No. 14]

         For the reasons discussed below, the claimant's motion will be granted and this matter will be remanded for further proceedings.


         a. Claim History

         Rogers filed an application for DIB under Title II of the Social Security Act (“Act”) on March 28, 2013. [Administrative Transcript, “Tr., ” at 149] The application alleged a disability onset date of March 22, 2013. [Id.] The Social Security Administration (“SSA”) denied her application initially and upon reconsideration. [Tr. at 55, 69] Rogers exhausted her administrative remedies with an administrative hearing before an ALJ [Tr. at 26], a written decision by the ALJ [Tr. at 11], and review by the Appeals Council [Tr. at 1]. Her case is ripe for review pursuant to 42 U.S.C. § 405(g).

         Rogers was 51 years old at the time of her application for benefits, and has a 10th grade education. [Tr. at 31, 56] She has past relevant work experience as a cashier and stocker. [Tr. at 44, 67] Rogers alleges that she was let go from her employment due to excessive absences caused by her physical impairments. [Tr. at 36] Rogers lived with her daughter at the time of the administrative hearing. [Tr. at 32]

         Rogers contends that she is unable to work due to consistent back and hip pain, and because of a panic disorder and depression. [Tr. at 33-34] She claims to be unable to drive because it is hard for her to sit still for more than 15 to 20 minutes. [Tr. at 33] Rogers also asserts that she is unable to stand for more than 15 to 20 minutes, at which point her back, left leg, and left hip begin to hurt. [Tr. at 37] Rogers states that she cannot lift 25 pounds. [Id.] Rogers states that she rises early because she has trouble sleeping, and is unable to function for 30 to 45 minutes until her medication begins to work. [Id.] While Rogers' medicines cause fatigue, she is able to care for her hygiene, load the dishwasher, help with laundry, and change the sheets on her bed. [Tr. at 38-41] Rogers contends that she sometimes needs help getting dressed, such as when she wears jeans. [Tr. at 41] Rogers occasionally goes to the grocery store and out for meals with her children. [Tr. at 39]

         b. Treatment and Evaluations

         Rogers underwent an evaluation on May 8, 2013, with consultative examiner Christi M. Hundley, Ph.D. [Tr. at 432-35] Dr. Hundley noted Rogers to be adequately groomed and had an upright posture and normal gait. [Tr. at 432] Rogers's speech was coherent and relaxed, and she was alert, pleasant, and cooperative. [Id.] Her mood appeared at times to be sad, neutral, and somewhat anxious. [Id.] She was tearful at times, and described her mood as “confused.” [Id.] Rogers described herself as feeling “alone” and “desolate, ” and stated that she liked to be alone. [Tr. at 434] She described daily panic attacks, which will last 1 to 2 hours with her medication or 5 to 6 hours without it. [Tr. at 434] Dr. Hundley assigned Rogers a Global Assessment of Functioning (“GAF”) score of 60. [Id.] She found that Rogers's ability to understand and remember simple instructions, and her ability to maintain attention and concentration, to be fair to good. [Tr. at 435] Her ability to interact appropriately in a work setting was found to be fair to guarded, and her ability to handle the stresses of a work environment was considered guarded, “given her presentation and description.” [Id.]

         On May 30, 2013, Rogers underwent a physical examination performed by William E. Waltrip, M.D., a consultative examiner. [Tr. at 437-43] Dr. Waltrip noted no history of injury to claimant's back, but reported back pain for at least ten years. [Tr. at 437] Rogers was described as a “very pleasant” during the examination, and was “reasonably cooperative” during range of motion testing. [Tr. at 438-39] She had a normal gait, had no muscle tenderness or spasm found in her back, could walk heel to toe and tandem, could perform a knee squat, and could walk on the tip of her toes and heels. [Tr. at 439]

         Dr. Waltrip assessed chronic back pain with radiculopathy in her right lower extremity. [Tr. at 440] He also noted fibromyalgia by history, right hip pain, and discomfort from varicose veins. [Id.] However, Dr. Waltrip found these impairments to only minimally limit her ability to walk, stand or sit, and found that Rogers should be able to lift objects of at least 25 pounds without limitation. [Id.] He noted that Rogers had good strength of grip, with ability to perform fine and gross manipulations, and found her range of motion to be without limitation. [Id.]

         State agency consultants reviewing Rogers's file and concurred with the conclusions of the examining consultants. Psychologists Barbara Lewis, Ph.D., and Ilze Sillers, Ph.D., reviewed claimant's record for psychological limitations and found them to be non-severe. [Tr. at 63-64 and 77-78] Dr. Lewis noted that Rogers was not fully credible for the degree of psychological limitation alleged. [Tr. at 63] Dr. Sillers found that the intensity and severity of the purported restrictions are not fully supported by the treatment records and clinical observations. [Tr. at 78] As for physical limitations, state agency physician Donna Sadler, M.D., found that Rogers can carry 20 pounds occasionally, 10 pounds frequently, and can sit or stand with normal breaks for 6 hours in an 8-hour workday. [Tr. at 80] Dr. Sadler found no manipulative limitations, but found that Rogers could never climb ropes, ladders, or scaffolds. [Id.] Rogers was limited to occasionally climbing ramps or stairs, balancing, stooping, crouching, crawling, and kneeling. [Id.]

         On March 11, 2014, records from Rogers's primary care physician suggest that the claimant was seeking disability, stating that she was unable to work because of her mental status. [Tr. at 569] On April 3, 2014, Steven Green, M.D., Roger's primary care physician, completed a residual functional capacity questionnaire on her behalf. [Tr. at 552-58] He noted first contact with Rogers in June of 2009, and that he has seen her for primary care about every three months. [Tr. at 552] Dr. Green diagnosed fibromyalgia, neuropathy, depression, and generalized anxiety disorder. [Id.] Her prognosis was listed as “poor, ” and her symptoms were listed as muscle pain, pain in back, tingling in arms and legs. [Id.] Pain was listed as severe, with reduced range of motion, tenderness, trigger points, muscle weakness, impaired sleep, and impaired appetite. [Tr. at 553] Dr. Green opined that Rogers's depression and anxiety affected her physical condition, that her emotional factors contribute to the severity of her symptoms and functional limitations, that her pain is consistent with her medical diagnosis, and that Rogers does not exaggerate her pain. [Tr. at 554] He noted that her pain is severe enough to interfere with her attention and concentration “occasionally (1/3 of day)” and that her ability to deal with the normal stresses of competitive employment is plagued by marked limitations. [Id.]

         Dr. Green asserted that Rogers's impairment levels are expected to last at least twelve months, and that she is limited to sitting, standing, and walking for 15 minutes without a change in position. [Tr. at 555] He noted that she can sit, stand, and walk with normal breaks for less than 2 hours in an eight hour day. [Id.] Dr. Green stated that Rogers must be able to lie down at will to relieve pain, that she requires a job that allows shifting positions at will, but that she need not elevate her legs at will or need a cane or assistive device during walking. [Tr. at 556] He noted that she could lift 10 pounds and less than 10 pounds only infrequently, and that she could never lift 20 pounds or greater. [Id.] Dr. Green also found limitations in Rogers's use of her right hand for any activity, and in use of her left hand for reaching overhead. [Tr. at 557] He found that she could bend at the waist only “occasionally (1/3 of day)”, that he impairments would affect her ability to work at a regular job on a daily basis, and that she will have a reasonable medical need to be absent from a full time work schedule on a chronic basis. [Id.] Finally, Dr. Green opined that Rogers's symptoms would require her to be absent from work for “10 ” days per month. [Tr. at 558]

         Rogers received epidural injections for pain treatment throughout 2012. [See Tr. at 334] It was specifically noted that Rogers was not seeking drugs. [Id.] Records from an August 7, 2013, office visit with Katherine Ballard, M.D., report pain in Rogers's lower back, right leg and hip pain, and occasional tingling in her legs. [Tr. at 447] The pain was reported as better with medication and heat and ice, and worse with standing for long periods of time. [Id.] Lumbar spine range of motion during the examination was restricted with flexion and extension, and tenderness was noted bilaterally as to paravertebral muscles. [Tr. at 448] During a primary-care office visit on July 24, 2014, Rogers reported to A.P.R.N. Leann Brown that she was “learning to deal with her anxiety with other methods besides taking Xanax.” [Tr. at 591] On August 26, 2014, Miranda Boone, a Certified Psychologist performed an initial assessment of Rogers and assigned her a GAF score of 25. [Tr. at 601] Finally, treatment records from Ephraim McDowell Regional Medical Center on September 13, 2014 report “worsening depression and suicidal ideation, ” and complaints of lower left quadrant pain. [Tr. at 606]

         c. The ALJ's Decision

         ALJ Bonnie Kittinger issued a decision on February 20, 2015, finding that Rogers has not been under a disability since the date of her application. [Tr. at 20] The ALJ found that Rogers suffers from the severe impairments of degenerative disc disease and fibromyalgia. [Tr. at 13] The ALJ found Rogers's mental impairments of depression and anxiety to be non-severe because, “considered singly and in combination, [they] do not cause more than minimal limitations in [her] ability to perform basic mental work activities.” [Id.] The ALJ found no “listing-level severity” with respect to whether Rogers's impairments met or medically equaled any listed impairments, and ...

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