Rogers v. Colvin

Filing 19

REPORT AND RECOMMENDATIONS- granting 14 MOTION for Summary Judgment, denying 12 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Obje ctions (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 9/14/2017. Signed by Judge Sherry R. Fallon on 8/28/2017. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
)
)
) C. A. No. 16-219-JFB-SRF
)

KATINA A. ROGERS,
Plaintiff,

v.

)

NANCY A. BERRYHILL,
Acting Commissioner of Social Security 1,

)

Defendant.

)
)
REPORT AND RECOMMENDATION

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. §§ 13811383f. 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.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for former Commissioner
Carolyn W. Colvin.

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 of2011, Rogers went to the emergency room, at least nine
times, to seek treatment for various symptoms. (Id at 250-628) Rogers sought treatment for

2

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 sepsis2 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 63 7)
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

2

Sepsis is the destruction or infection of tissues by disease-causing organisms, usually
accompanied by a fever. HARVARD HEALTH PUBLICATIONS: HARVARD MEDICAL SCHOOL,
http://www.health.harvard.edu/medical-dictionary~of-health-terms/ (last visited Aug. 4, 2017).

3

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)

pr. 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 108109) 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

4

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

3

The GAF scale ranges from 0 to 100 and is used by a clinician to indicate his overall judgment
of a person's psychological, social, and occupational functioning on a scale devised by the
American Psychiatric Association. Robinson v. Colvin, Civ. No. 14-662-SLR, 2015 WL
5838469, at *4 n.9 (D. Del. Oct. 5, 2015) (citing American Psychiatric Association, Diagnostic
& Statistical Manual ofMental Disorders (Text Revision, 4th ed. 2000) (DSM-IV-TR)). A GAF
of 31-40 indicates "[s]ome impairment in reality testing or communication (e.g., speech is at
times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends,
neglects family, and is unable to work ... )." Id. A GAF of 41-50 indicates "[s]erious symptoms
(e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job)." Id. A GAF of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g. few friends, conflicts with peers or co-workers)." Id. A GAF of 61-70
indicates "[s]ome mild symptoms (e.g. depressed mood and mild insomnia) OR some difficulty
in social, occupational, or school functioning ... , but generally functioning pretty well, has some
meaningful interpersonal relationships." Id.

5

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 10931099) 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 11001104) 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

6

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

4

In a statement dated May 15, 2014, Rogers stated she continues to have a "good working ·
relationship" with Dr. Arian. (Tr. at 241)
5
Lumbago is acute or chronic pain in the lower back. MERRIAM-WEBSTER,
https://www.merriam-webster.com/dictionary/lumbago (last visited Aug. 4, 2017).
7

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

8

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 explained
that her daughter does her laundry most of the time. (Id at 84) Rogers stated her daughters or
her case manager will drive her to the grocery store to get food. (Id)
Rogers also explained that she was a social person years ago, but she no longer likes to be
around a lot of people. (Id at 68, 85) Rogers said that she and her family are currently distant.
(Id) However, Rogers said that she talks to her father on the phone. (Id at 69) Rogers testified
that she currently lives in a mental health house, and receives individual therapy. (Id at 68) She
said she often has panic or anxiety attacks about dying. (Id at 72)

2. Vocational expert testimony
The ALJ posed the following hypothetical to the vocational expert (the "VE"):

9

[T]his is an individual who is aged 39, the claimant's age at the application year;
has a high school degree, can read, write and do simple math. The hypothetical is
for the light level of exertion. The postural are all occasional, but no [sic] climb a
ladder, a rope or scaffold. Environmentally avoid concentrated exposure to
temperature extremes, fumes, odors, dust, gases, poor ventilation and hazards.
Hazards are defined as heights and moving machinery. Finally simple, unskilled
work. Could such a person do any of the past work?
(Id. at 87-88)

Based on the VE's testimony and Rogers' medical history, the ALJ concluded that
Rogers was unable to return to her past relevant work. 6 (Tr. at 39) However, the VE testified
that at the light exertional level, the individual described would be able to work in occupations
including price marker, packer, or production inspector. (Id. at 88-89) The VE testified that at
the sedentary exertional level, the individual described would be able to work in occupations
including grader, sorter, information clerk, or order clerk. (Id. at 88-89)
On cross examination, Rogers' attorney asked whether a hypothetical individual who is
limited to "sitting less than two hours, standing or walking less than two hours" could perform
the work listed by the VE. (Id. at 88) The VE stated that such a hypothetical is not representative
of full time work. (Id.) Rogers' attorney further asked whether someone who has symptoms that
"interfere with the person's attention and concentration for at least twenty percent of the
workday" could perform the work listed by the VE. (Id) The VE responded that such an
individual would not be "sufficiently productive to be sustained in work." (Id.)
3. The ALJ' s findings
Based on the factual and medical evidence in the record, and the testimony of Rogers and
the VE, the ALJ determined that Rogers was not disabled under the Act for the relevant time

6

The court notes that the ALJ asked the VE if Rogers could return to her past relevant work,
however, the VE's response is written as "inaudible" on the transcript. (Tr. at 880)
10

period from July 20, 2011 through the date of the ALJ's decision, June 25, 2014 .. (Tr. at 27-41)
The ALJ found, in pertinent part:
1. The claimant has not engaged in substantial gainful activity since July 20,
2011, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: obesity; lumbar
degenerative disc disease; depression; anxiety; and history of substance abuse
(20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and
416.926).
4. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 416.967(b) except postural activities are all occasional, but no
climbing of a ladder, rope, or scaffold. Environmentally, avoid concentrated
exposure to temperature extremes, odors, dust, gases, poor ventilation, and
hazards, defined as heights and moving machinery. She is limited to simple,
unskilled work.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on July 5, 1972 and was 39 years old, which is defined
as a younger individual age 18-49, on the date the application was filed (20.
- CFR 416.963).
7. The claimant has at least a high school education and is able to communicate
in English (20 CFR 416.964).
8. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is "not disabled," whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
9. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 416.969 and
416.969(a)).

11

10. The claimant has not been under a disability, as defined in the Social Security
Act, since July 20, 2011, the date the application was filed (20 CFR
416.920(g)).
(Tr. at 32-40)

III.

STANDARD OF REVIEW
Findings of fact made by the ALJ, as adopted by the Appeals Council, are conclusive if

they are supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3) (2015).
Judicial review of the ALJ's decision is limited to determining whether "substantial evidence"
supports the decision. See Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986).
In making this determination, a reviewing court may not undertake a de novo review of the
ALJ' s decision and may not re-weigh the evidence of record. See id. In other words, even if the
reviewing court would have decided the case differently, the court must affirm the ALJ's
decision if it is supported by substantial evidence. See id. at 1190__.:91.
Substantial evidence is defined as less than a preponderance of the evidence, but more
than a mere scintilla of evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting

Jesurum v. Sec'y of the United States Dep 't ofHealth & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995)). As the United States Supreme Court has explained, substantial evidence "does not mean
a large or significant amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565
(1988). The Supreme Court also has embraced this standard as the appropriate standard for
determining the availability of summary judgment pursuant to Federal Rule of Civil Procedure
56. "The inquiry performed is the threshold inquiry of determining whether there is the need for
a trial-whether, in other words, there are any genuine factual issues that properly can be

12

resolved only by a finder of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
This standard mirrors the standard for a directed verdict under Federal Rule of Civil
Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to the verdict. If "reasonable minds could differ as
to the import of the evidence, however, a verdict should not be directed." See id. at 250-51
(internal citations omitted). Thus, in the context of judicial review under § 405(g):
[a] single piece of evidence will not satisfy the substantiality test if [the ALJ]
ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is
evidence substantial if it is overwhelmed by other evidence-particularly certain
types of evidence (e.g., that offered by treating physicians)-or if it really
constitutes not evidence but mere conclusion.

Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986) (quoting Kent v. Schweiker, 710 F.2d 110,
114 (3d Cir. 1983)). Where, for example, the countervailing evidence consists primarily of a
claimant's subjective complaints of disabling pain, the ALJ "must consider the subjective pain
and specify his reasons for rejecting these claims and support his conclusion with medical
evidence in the record." Matullo v. Bowen, 826 F.2d 240, 245 (3d Cir. 1990).
"Despite the deference due to administrative decisions in disability benefit cases,
'appellate courts retain a responsibility to scrutinize the entire record and to reverse or remand if
the [CommissionerJ's decision is not supported by substantial evidence.'" Morales v. Apfel, 225
F.3d 310, 317 (3d Cir. 2000) (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). "A
district court, after reviewing the decision of the [Commissioner]

m~y,

under 42 U.S.C. § 405(g)

affirm, modify, or reverse the [Commissioner]'s decision with or without remand to the
[Commissioner] for rehearing." Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984).

13

IV.

DISCUSSION
A.

Disability Determination Process

Title II of the Social Security Act affords insurance benefits "to persons who have
contributed to the program and who suffer from a physical or mental disability." 42 U.S.C. §
423(a)(l)(D) (2015); Bowen v. ,Yuckert, 482 U.S. 137, 140 (1987). A disability is the "inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
A claimant is only disabled if his impairments are so severe that he is unable to do his previous
work or engage in any other kind of substantial gainful work existing in the national
economy. Id.§ 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
The Commissioner must perform a five-step analysis to determine whether a person is
disabled. See 20 C.F.R. §§ 404.1520, 416.920; Plummer v. Apfel, 186 F.3d 422, 427-28 (3d Cir.
1999). If the Commissioner makes a finding of disability or non-disability at any point in the
sequential process, the Commissioner will not review the claim further. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4)(i). At step one, the Commissioner determines whether the
claimant is engaged in any substantial gainful activity. See id.§§ 404.1520(a)(4)(i),
416.920(a)(4)(i) (mandating finding of non-disability when claimant is engaged in substantial
gainful activity). If the claimant is not engaged in substantial gainful activity, step two requires
the Commissioner to determine whether the claimant is suffering from a severe impairment or a
severe combination of impairments. See id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (mandating
finding of non-disability when claimant's impairments are not severe). If the claimant's
impairments are severe, at step three, the Commissioner compares the claimant's impairments to

14

a list of impairments that are presumed severe enough to preclude any gainful work. See id. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); Plummer, 186 F.3d at 428. When a claimant's
impairment or its equivalent matches a listed impairment, the claimant is presumed disabled. See
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment, either singly or
in combination, fails to meet or medically equal any listing, the analysis continues to step four
and five. See id.§§ 404.1520(e), 416.920(e).
At step four, the ALJ considers whether the claimant retains the residual functional
capacity (the "RFC") to perform his past relevant work. See id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv) (stating claimant is not disabled if able to return to past relevant work);

Plummer, 186 F.3d at 428. A claimant's RFC is "that which an individual is still able to do
despite the limitations caused by his or her impairment(s)." Fargnoli v. Halter, 247 F.3d 34, 40
(3d Cir. 2001). The claimant bears the burden of demonstrating the inability to return to past
relevant work. See Plummer, 186 F.3d at 428.

If the claimant is unable to return to past relevant work, at step five, the Commissioner
must demonstrate that the claimant's impairments do not preclude him from adjusting to any
other available work. See 20 C.F.R. §§ 404.1520(g), 416.920(g) (mandating finding of nondisability when claimant can adjust to other work); Plummer, 186 F.3d at 428. In other words,
the Commissioner must prove that "there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with his medical impairments, age,
education, past work experience, and [RFC]." Plummer, 186 F.3d at 428. The ALJ must
analyze the cumulative effect of all the claimant's impairments in determining whether he or she
is capable of performing work and is not disabled. See id. The ALJ often seeks the VE's
assistance in making this finding. See id.

15

B.

Whether the ALJ's Decision is Supported by Substantial Evidence

On June 25, 2014, the ALJ found Rogers was not disabled within the meaning of the Act
from July 20, 2011, the date the application was filed, through the date of the hearing. (Tr. at 3041) The ALJ concluded that, despite Rogers' severe impairments (obesity, lumbar degenerative
disc disease, depression, anxiety, and a history of substance abuse), she has the residual
functional capacity to perform light work. (Id) After considering the VE's testimony, the ALJ
concluded that Rogers could work as a ticket marker, packer, production inspector, grader,
sorter, information clerk, or order clerk. (Id at 40)
Rogers asserts three arguments on appeal: (1) the ALJ failed to evaluate Rogers' mental
impairments at Step Three; (2) the ALJ improperly discounted Rogers' treating physician's
opinions; and (3) the ALJ erred in not addressing all of Rogers' GAF scores. (D.I. 13, 16)

1. The ALJ properly conducted an assessment of Rogers' mental
impairments at Step Three
Rogers contends the ALJ did not consider all of the evidence when evaluating the
severity of her mental impairments at Step Three. (D.I. 16 at 12-16) Specifically, Rogers alleges
the ALJ erred in failing to include opinions from her treating physician in determining whether
her symptoms satisfied the criteria for listings 12.04 (defining "depressive, bipolar and related
disorders"), 12.06 (defining "anxiety and obsessive-compulsive disorders"), and 12.09 (defining
"substance addiction disorders"). (Id)
To reach her conclusion that Rogers' impairments did not meet the criteria oflistings at
Step Three, the ALJ assessed the four functional areas set out in the disability regulations for
evaluating mental disorders, known as the "paragraph B" criteria. See 20 C.F.R. § 404, Subpt. P,
App. 1 (2015). These areas include activities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. 20 C.F .R. § 404, Subpt. P, App. 1, at §
16

12.00(C). To find a marked rather than mild limitation in one of these areas, the impairment
must be more than moderate, but less than extreme, and the limitation must seriously interfere
with the ability to function independently, appropriately, effectively, and on a sustained basis.
Id. To satisfy the "paragraph B" criteria for a listing, the mental impairments must be marked in

at least two of the above categories. (Tr. at 34)
First, with respect to activities of daily living, the ALJ found that Rogers has a mild
restriction. (Id. at 34) "[A]ctivities of daily living include adaptive activities such as cleaning,
shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring
appropriately for your grooming and hygiene, using telephones and directories, and using a post
office." 20 C.F.R. § 404, Subpt. P, App. 1, at§ 12.00(C)(l). Rogers argues the ALJ did not
consider that she has a hard time putting on shoes, and that her daughter helps her with her hair.
(D.I. 16 at 14) The ALJ, however, based her finding primarily upon Rogers' own testimony. In
her testimony, Rogers stated she can put together a meal for herself, and is able to take care of
her personal hygiene. (Tr. at 83-84) Rogers stated her daughter helps her with laundry, and will
drive her to the grocery store to get food. (Id.) The ALJ also relied upon an Adult Function
Report that Rogers filled out in 2012. In the report, Rogers stated she can perform light
dishwashing, and fold laundry while sitting down. (Id. at 209-211) Accordingly, substantial
evidence supports the ALJ' s conclusion that Rogers did not exhibit marked restriction in
activities of daily living.
Second, the ALJ found a mild restriction in social functioning. (Id. at 12) Initiating
social contact with others, communicating clearly with others, or interacting and actively
participating in group activities are indicative of strength in social functioning. See 20 C.F .R. §
404, Subpt. P, App. 1, at§ 12.00(C)(2) (2015). Rogers argues the ALJ did not consider her

17

decreased participation in social activities because of her pain and anxiety, and that she is
emotionally distant from friends and family. (D.I. 16 at 14) The ALJ, however, based her
finding primarily upon Rogers' own testimony. Rogers testified that she goes to the grocery
store with her daughter, and talks to her father on the telephone. (Id. at 69-84) Rogers also
testified to having roommates. (Id. at 68-72) In the Adult Function Report, Rogers stated she is
able to leave the house alone, but does not go out frequently. (Id. at 211) Accordingly,
substantial evidence supports the ALJ' s conclusion that Rogers did not exhibit marked restriction
in social functioning.
Third, the ALJ found that Rogers has moderate difficulties in the functional area of
concentration, persistence, or pace. (Id. at 34) Rogers argues that the ALJ did not consider her
inability to finish things or her ability to handle stress. (D.I. 16 at 14) However, the ALJ did
address Rogers' testimony in which she stated she has difficulty focusing and maintaining
concentration. (Tr. at 34) The ALJ further noted that Rogers testified to taking her medication
on her own, but that she does forget to take doses at times. (Id.) Moreover, Rogers testified that
she is able to maintain her own finances. (Id. at 211) Rogers further argues the ALJ did not
consider Dr. Arian's opinion, in which he checked a box indicating that Rogers would be off task
20% of the workday, and would miss two days of work a month. (D.I. 16 at 15) The ALJ did not
mention Dr. Arian's opinion when analyzing Rogers' mental impairments under the criteria of
"paragraph B" for Step Three, however, the ALJ did consider Dr. Arian's opinion at Step Four,
when conducting a residual functional capacity assessment. (Tr. at 39) Nonetheless, substantial
evidence supports the ALJ' s conclusion that Rogers did not exhibit marked restriction in
concentration, persistence or pace.

18

Finally, the ALJ found one to two episodes of decompensation of extended duration
during the relevant time period. (Id. at 34) To qualify, there must be "three episodes in 1 year, or
an average of once every four months, each lasting two weeks." 7 20 C.F .R. § 404, Subpt. P,
App. 1 (2016). Rogers argues the ALJ did not consider her six hospital admissions between July
2013 and October 2013, including three admissions that exceeded two weeks. (D.I. 16 at 15)
However, the ALJ does acknowledge that Rogers had two episodes of decompensation, and had
inpatient mental health treatment in July 2013. (Tr. at 34) Additionally, Rogers claims--a
disability onset date of May 1, 2010. (Tr. at 30) However, she admits not seeking any treatment
for mental health issues until July of 2013. (Tr. at 108, 1118) In the interim, she admits she had
not worked at all and was abusing drugs and alcohol in place of treatment. (Tr. at 36, 108, 1088)
Thus, substantial evidence exists for the ALJ's finding that the "paragraph B" criteria were not
met.
The ALJ further considered whether "paragraph C" 8 criteria was satisfied. (Id. at 35) The
ALJ noted:
There is no evidence that the claimant has had repeated episodes of
decompensation, or that minimal increases in mental demands or a change in the
environment would cause her to decompensate, or that she has the inability to
7

"Episodes of decompensatio:n are exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace. Episodes of d'ecompensation may be demonstrated by an exacerbation in
symptoms or signs that would ordinarily require increased treatment or a less stressful situation
(or a combination of the two). Episodes of decompensation may be inferred from medical
records showing significant alteration in medication; or documentation of the need for a more
structured psychologiCal support system (e.g., hospitalizations, placement in a halfway house, or
a highly structured and directing household); or other relevant information in the record about
the existence, severity, and duration of the episode." 20 C.F.R. § 404, Subpt. P, App. 1 (2016).
8
A "paragraph C" analysis is only conducted if the "paragraph B" criteria is not met. CFR Part
404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). A "paragraph C"
analysis is conducted for listings 12.04 and 12.06. Id· The "paragraph C" criteria considers the
severity of the functional limitations. Id
·
19

function outside of a highly supportive living arrangement or a complete inability
to function independently outside the area of her home.
(Tr. at 35)
Although Rogers experienced episodes of decompensation, it is not enough to satisfy the
requirements oflistings 12.04, 12.06, and 12.09 as determined by the "paragraph B" criteria. As
the ALJ stated: "Because the claimant's impairments do not cause at least two 'marked'
limitations or one 'marked' limitation and 'repeated' episodes of decompensation, each of
extended duration, the 'paragraph B' criteria are not satisfied." (Tr. at 34) As such, substantial
evidence supports the ALJ's assessment of Rogers' mental impairments at Step T~ee of the
evaluation process.

2. The ALJ properly weighed the objective medical evidence and opinions
of Rogers' treating physician
Rogers argues the ALJ failed to properly weigh the medical opinions of her pain
management sp.ecialist, Dr. Arian. (D.I. 13 at 17-18) Rogers asserts the ALJ improperly gave
Dr. Arian's opinion "little weight," because his opinion was supported by all of the medical
evidence and her testimony. (D.I. 16 at 10-12) Rogers further argues the ALJ's findings are
improperly based on her own lay opinion. (D.I. 13 at 14-15)
To determine the proper weight to give to a medical opinion, the ALJ is required to
weigh all the evidence and resolve any material conflicts. See Richardson v. Perales, 402 U.S.
389, 399 (1971). Generally, the weight afforded to any medical opinion is dependent on a
variety of factors, including the degree to which the opinion is supported by relevant evidence
and consistent with the record as a whole. 20 C.F.R. § 404.1527(c)(3)-(4) (2012). To that end,
the more consistent an opinion is with the record as a whole, the more weight is given to that
opinion. Id.§ 404.1527(c)(4).

20

The ALJ must first assess whether a medical opinion is from a treating, non-treating, or
non-examining source. 20 C.F.R. §§ 404.1502, 416.902; see also Fletcher v. Colvin, Civil
Action No. 12-920-SRF, 2015 WL 602852, at *9 (D. Del. Feb. 11, 2015), report and

recommendation adopted, 2015 WL 1284391 (D. Del. Mar. 19, 2015). The opinion of a treating
physician-one who has an "ongoing treatment relationship" with the patient-is entitled to
special significance. 20 C.F.R. §404.1502; Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir.
2001) (citing 20 C.F.R. § 404.1527(d)(2)). On the other hand, a treating physician's opinion does
not warrant controlling weight if unsupported by clinical and laboratory diagnostic findings, and
if it is inconsistent with other substantial evidence. See 20 C.F.R. § 404.1527(c)(2); Fargnoli,
247 F.3d at 42--43. The more a treating source presents medical signs and laboratory findings to
support the medical opinion, the more weight it is given. See Robinson v. Colvin, Civ. No. 14662-SLR, 2015 WL 5838469, at *12 (D. Del. Oct. 5, 2015). Likewise, the more consistent a
treating physician's opinion is with the record as a whole, the more weight it should be afforded.

Id.
An ALJ may not reject a treating physician's assessment based on his or her own

credibility judgments, speculation, or lay opinion, and the ALJ cannot disregard a treating
physician's opinion without explaining his or her reasoning or referencing objective conflicting
medical evidence. Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000); Gilliland v. Heckler, 786
F.2d 178, 184 (3d Cir. 1986). Even when the treating source opinion is not afforded controlling
weight, the ALJ must determine how much weight to assign it by considering factors such as
length, nature, and frequency of treatment visits, nature and extent of the treatment relationship,
whether the opinion is supported by medical evidence, whether the opinion is consistent with the
medical record, and the medical source's specialization. 20 C.F.R. §§ 404.1527(d), 416.927(d).

21

In the present case, Dr. Arian provided a report on Rogers' physical and mental
limitations, in which Dr. Arian checked a box stating Rogers would be off task for 20% of the
workday, and would be absent from work two days per month. (Tr. at 1558-1561) However, the
ALJ assigned Dr. Arian's opinion "little weight," because objective medical findings, and
conservative and routine treatment history, did not support the limitations assessed. (Id at 39)
For example, Dr. Arian, throughout his treatment of Rogers, consistently stated that Rogers'
attention span and ability to concentrate was normal. (Id at 1406, 1408, 1513, 1517, 1521, 1525)
Dr. Arian also stated that Rogers' prognosis was "good" for the treatment of her lumbago. (Id at
1245) The ALJ further noted that Dr. Arian's records show that Rogers' treatment remains
limited to medication and physical therapy. (Id at 39) Dr. Arian concluded that Rogers had an
"undefined psychological disturbance." (Id at 1561) However, Dr. Arian noted in his evaluation
of Rogers that he is not "an expert in psychological diagnosis." (Id at 1559) Moreover, the
Third Circuit has explained that form reports which require physicians to only check boxes or fill
in a blank are considered "weak evidence at best," especially when such reports are not
accompanied by written explanations. Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993).
Therefore, substantial evidence supports the ALJ' s decision to assign less than controlling
weight to the opinion of Dr. Arian.
Rogers further argues the ALJ improperly relied on her own lay opinion. (D.I. 16 at 912) Rogers' argument is flawed. In her analysis, the ALJ assigns little weight to Dr. Arian's
opinion that Rogers would be off task for 20% of the workday, but does address Dr. Arian's
other findings. For example, the ALJ considered Dr. Arian's opinions as to Rogers' prognosis
and future treatment, gait, and pain management. (Id at 37-39) Moreover, an ALJ does not have
to accept the opinion of any medical doctor or expert, but may weigh the evidence in the record

22

and make her own inferences. Brown v. Astrue, 649 F.3d 193, 196 (3d Cir. 2011) (citing Kertesz

v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986) ("The ALJ is not bound to accept
the opinion or theory of any medical expert, but may weigh the medical evidence and draw its
own inferences."). As such, the court finds the ALJ did not improperly rely on her own lay
opm10n.

3. The ALJ appropriately considered Rogers' GAF scores
Rogers argues the ALJ erred in not considering her GAF scores fluctuating from 20 to 60
during her various hospital treatments in 2013, when determining the severity of her mental
impairments. (D.I. 13 at 15-17)
In her analysis, the ALJ acknowledged Rogers' inpatient treatment at DBS, in which she
was discharged with a GAF score of 55. (Tr. at 39) The ALJ did not address Rogers' subsequent
GAF scores. However, the ALJ did explain how the GAF score of 55 was consistent with the
medical record as a whole. (Tr. at 39) For example, the ALJ stated that a GAF score of 55 is
consistent with "the limited mental health treatment record, improvement of symptoms with
alcohol and drug abstinence, and reports of some difficulty with memory." (Id.) Additionally,
the ALJ cited to Rogers' reported activities of daily living. (Id.) The ALJ further noted that
Rogers did not seek formal mental health treatment until 2013, and appears stable under her
current treatment plan. (Id. at 38) The ALJ also considered Rogers' alcohol and drug use. (Id.)
The ALJ noted that substance abuse may reduce the effectiveness of prescribed medications. 9

(Id. at 38)

9

The Social Security Act states that "an individual shall not be considered to be disabled .. .if
alcoholism or drug addiction would be a contributing factor material to the Commissioner's
determination that the individual is disabled." 42 U.S.C. § 1382c(a)(3)(J).
23

Moreover, it is not a requirement for the ALJ to discuss all of the GAF scores in the
medical record. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) ("Although required to
develop the record fully and fairly, an ALJ is not required to discuss all evidence submitted, and
an ALJ's failure to cite specific evidence does not indicate that it was not considered."). The
ALJ discussed Rogers' inpatient treatment at DBS and her GAF score of 55, and explained how
the record as a whole did not support a finding of disability. (Tr. at 36-39) Moreover, the ALJ
cited to substantial evidence in the record that contradicts limitations that would be indicated by
low GAF scores. See Axtell v. Colvin, 2015 WL 12781187, at *19 (D. Minn. Apr. 30, 2015)
("The ALJ' s treatment of the GAF scores was adequate and the ALJ gave ample support for his
decision that the low scores did not support an inability by [Plaintiff] to work."). As such,
substantial evidence supports the ALJ' s consideration of Rogers' GAF scores.

4. Substantial evidence supports the ALJ's assessment of Rogers' mental
impairments
Rogers argues the ALJ failed to evaluate the severity of her mental impairments. (D.I. 13
at 14} However, Rogers' argument is not persuasive, because the ALJ concluded that Rogers has
severe depression and anxiety. (Tr. at 32) The ALJ rejected the opinions of two State agency
psychological consultants that found Rogers' mental impairments to be "non-severe," because
the ALJ found that Rogers' ongoing treatment and recent hospitalizations supported a finding of
severe depression and anxiety. (Id. at 38)
The ALJ found that Rogers' mental impairments did not meet or equal the requirements
of one of the Commissioner's listed impairments. See§ IV(B)(l), supra. Nonetheless, the ALJ
considered such impairments in the determination of Rogers' RFC.
The ALJ concluded that despite Rogers' severe mental impairments, Rogers' RFC is
consistent with being able to perform "a full range of light work." (Id. at 40) The ALJ noted that
24

Rogers "appears stable with current treatment." (Id. at 38) The ALJ further limited Rogers to
"simple unskilled work," due to her reported difficulty with memory and focus. (Id.) However,
"a finding of a severe impairment does not automatically lead to the inclusion of limitations
resulting from the severe impairment in the RFC assessment." Kelly v. Colvin, 2013 WL
5273814, at *11 (D. Del. Sept. 18, 2013). Rogers does not take issue with the ALJ's finding at
Step Four that she cannot perform her past relevant work.
The ALJ concluded Rogers could perform a variety of jobs, as suggested by the VE. (Id.
at 40) The VE stated that Rogers could perform the requirements of representative light,
unskilled jobs, such as ticket marker (1.5 million jobs nationally and 1,400 locally), packer
(300,000 jobs nationally and 200 locally), and production inspector (660,000 jobs nationally and
9,000 locally). (Id. at 40) The VE further stated that Rogers could perform the requirements of
representative sedentary unskilled jobs, such as grader sorter (39,000 jobs nationally and 260
locally), information clerk (47,000 jobs nationally and 200 locally), and order clerk (200,000
jobs nationally and 300 locally). (Id.) Thus, substantial evidence supports the ALJ's
-consideration of Rogers' mental impairments.

V.

CONCLUSION
For the foregoing reasons, the court recommends denying Rogers' motion for summary

judgment (D.I. 12), and granting the Commissioner's cross-motion for summary judgment (D.I.
14).
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Pel. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10)

25

pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: August :l:~

., 2017

26