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Rogers v. Colvin

United States District Court, N.D. Illinois, Eastern District

April 24, 2014

CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant

Page 988

For Edward Rogers, Plaintiff: Stacey J. Dembo, LEAD ATTORNEY, Beth A. Alpert, Beth A. Alpert & Associates, Chicago, IL.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Katherine Ellen Beaumont, LEAD ATTORNEY, SSA, United States Attorney's Office (NDIL), Chicago, IL.

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Jeffrey Cole, United States Magistrate Judge.

Edward Rogers, seeks review of the final decision of the Commissioner (" Commissioner" ) of the Social Security Administration (" Agency" ) denying his application for Disability Insurance Benefits (" DIB" ) under Title II of the Social Security Act (" Act" ). Mr. Rogers asks the court to reverse and remand the Commissioner's decision.


Mr. Rogers applied for DIB on September 22, 2009, alleging that he became disabled on October 1, 2008, due to lower back pain. His application was denied initially on December 1, 2009 (R. 83), and upon reconsideration on March 30, 2010. (R. 99). Mr. Rogers continued pursuit of his claim by filing a timely request for hearing on April 26, 2010. (R. 106-109).

An administrative law judge (" ALJ" ) convened a hearing on October 22, 2010, at which Mr. Rogers, represented by counsel, appeared, and testified. (R. 46-70). In addition, Julie Bose testified as a vocational expert. (R. 46,70). On December 6, 2010, the ALJ issued a decision, finding that Mr. Rogers was not disabled because he does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, that he was capable of sustaining competitive work consistent with his residual functional capacity, and that he was capable of performing the past relevant work of his most recent work history. (R. 11-23). This became the final decision of the Commissioner when the Appeals Council denied Mr. Rogers' request for review of the decision on February 28, 2012. (R.

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1-6). See 20 C.F.R. § § 404.955; 404.981. Mr. Rogers has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).


A. The Vocational Evidence

Mr. Rogers was born on September 21, 1972, and was 38 years old on the date the ALJ issued his decision. (R. 51). He is single, with one child and lives with his daughter and her mother. (R. 50-51). Mr. Rogers says he quit his job at Taco Bell in the third quarter of 2009 to accept employment at McDonald's, which then fired him because he was not doing his job because, he says, of his back pain. (R. 52, 68-69). His total income from these two positions was approximately $1,100. (R. 52, 160). His previous positions include janitor, porter, detailer, and van driver. (R. 22). Except for his brief employment in the third quarter of 2009, Mr. Rogers has not worked since October 2008. (R. 52-53).

B. The Medical Evidence

While Mr. Rogers' medical record provides substantial information documenting a heart attack and diabetes treatments, the amount concerning his principal complaint, low back pain, is slight and intermittent. Mr. Rogers provided documentation of his treatment from Will County Health Center from December 14, 2007, through June 15, 2009 (R. 257-270). The eight visits over this 18-month period indicate various follow up treatment for Mr. Rogers for his diabetes and a heart attack suffered in June 2008. Id. A report on February 17, 2009 described Mr. Rogers as " obese" while an April 7, 2008 report noted that he was " fit for work." (R. 261, 265). While Mr. Rogers was on medications for hypertension and diabetes, he responded well to treatment with only one drug interaction problem in January 2010, requiring a switch from Paxil to Prozac. (R. 20, 316).

On June 30, 2009, Mr. Rogers had an ultrasound performed by Dr. Mohammad Shafi, M.D. of a cyst on his kidney. (R. 294). Dr. Shafi diagnosed the growth as a benign cyst, approximately 2.0 cm in length, and another lesion of 2.0 cm by 3.5 cm on his adrenal gland. (R. 295). Dr. Shafi noted normal renal functions and recommended no further medical intervention except performance of another scan to follow up one year later. Id.

The evidence relating to Mr. Rogers' claims of low back pain consists of a referral from his physician in July 2009 followed by two visits to an orthopedic surgeon six months apart. (R. 298, 301-303, 352). The first occurred on August 24, 2009 at Northwestern Memorial Hospital. (R. 301, 364). The report states that Mr. Rogers had been complaining of low back pain for two months. (R. 302). A CT scan revealed a failure formation of the L4 vertebrae with a central failure formation. Id. No evidence of instability was found at this level, but some evidence of disk narrowing was possible at the levels above and below. Id.

The report characterizes Mr. Rogers as " in no acute distress," with motor strength testing of 5/5 throughout his bilateral lower and upper extremity. Id. He had normal sensation and gait, and could walk heel and toe without difficulty. Id. He had a negative straight leg raise in the sitting and supine positions. Id. Dr. Hsu recommended physical therapy of at least 6-8 weeks with emphasis on core building. Id. He did not feel the vertebral failure was a cause of Mr. Rogers' claimed back pain and did not recommend surgery. Id.

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Over the next five months, Mr. Rogers visited his primary physician, Dr. Chowdry, seven times. (R. 357-363). On four occasions, Mr. Rogers complained of low back or low back and shoulder pain. Id. On his November 9, 2009 visit, the report indicates he was prescribed Toradol overnight, and diagnosed with a lumbar strain. (R. 359). It was also indicated that Mr. Rogers was walking okay. Id.

On November 30, 2009, Dr. Marion Panepinto, M.D. performed a Physical Residual Functional Capacity (" RFC" ) Assessment on Mr. Rogers. (R. 311). Dr. Panepinto determined that while Mr. Rogers had an MDI and joint narrowing of the spine, the " [physical examination] shows [claimant's] limitations were not limited to the extent alleged. " (R. 309)(Emphasis added). Thus, Dr. Panepinto concluded that Mr. Rogers' statement regarding his limitations only " partially credible." Id.

On January 27, 2010, Mr. Rogers returned to Northwestern for a follow up visit. (R. 352). The report indicates Mr. Rogers had undergone four weeks of physical therapy with no appreciable benefit for his low back pain. Id. Dr. Hsu again characterized the injury as " likely muscular in nature," and his examination noted no significant changes since the prior visit in August 2009. Id. He believed Mr. Rogers' pain was caused by either facet arthropathy or a lumbar strain and recommended a bilateral facet joint injection for treatment. Id. Dr. Hsu did not feel Mr. Rogers was a good surgical candidate due to the nature of his complaints, nor did he feel there was any danger with lifting restrictions. Id.

As for Mr. Rogers' depression, the record indicates he first sought treatment in December 2007 and continued through April 2008 with Dr. Deena Nardi, APN, CNP. (R. 336-337). Dr. Nardi diagnosed Mr. Rogers with Major Depressive Disorder, mild, single episode and prescribed Paxil. (R. 337). Along with his antidepressant, the treatment regime consisted of anger management. (R. 336-337). Mr. Rogers resumed treatment September 23, 2009, the day after filing for benefits, complaining of frustration with his mother, who wanted him to provide full-time care for his incapacitated father, as well as anxiety. (R. 320, 325). On his October 27, 2009 visit, the report notes, " family [issues] persist with client[.] [I]n spite of the pain he is in, he manages to take care of his father and daughter." (R. 320).

The reports do not indicate any violence by Mr. Rogers, or any recommendations regarding his ability to work. (R. 318-327). It says that he needs to work on his " coping skills" and " id[entify] and cope with feelings of anger." (R. 316).

C. The Administrative Hearing Testimony

Mr. Rogers' Testimony

Mr. Rogers testified about his back pain and the difficulties he said it caused him in attempting to find work or perform tasks. However, his testimony seemed at odds with several of his medical reports.

Mr. Rogers thought he had looked for work sometime in 2009 but could provide no details or specifics when asked by the ALJ. (R. 54). Mr. Rogers believed his back pain began approximately eighteen months to two years before the hearing date of October 22, 2010. Id. He described the pain as " stabbing" that " just won't go away." (R. 55). Movement, remaining stationary, or sitting had no effect on the pain; it was constant. (R. 64). When the ALJ asked about pain intensity on a typical day, with 10 being " you would have to go to the emergency room," he immediately responded " 10." Id. Later, when prompted by his attorney who advised

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that " [o]bviously, it's not always a 10 because you'd live in the emergency room in that were the case," Mr. Rogers then rated his pain intensity as " 7." (R. 64).

He testified his physician advised him that nothing could be done for the pain except taking Tylenol or Aleve, which he does every eight hours. (R. 55). That testimony was at odds with Dr. Hsu's recommendation that he get steroid injections. (R. 352). Mr. Rogers contended that his doctor did not recommend any medication or rehabilitation treatment, and he was not a good candidate for surgery because of his youth. (R. 56). That testimony was also at odds with Dr. Hsu's conclusion that he was not a candidate for surgery due to the nature of his complaints. (R. 352).

Mr. Rogers estimated he needed to move or switch positions every ten minutes to stay comfortable. He said he could stand for twenty minutes before the pain began, walk for twenty minutes and sit maybe ten or fifteen minutes. (R. 56, 60). He then said if he's up and moving for more than two or three hours, it begins to " kill his back." (R. 63). Squatting or kneeling also caused severe back pain. (R. 68). Lifting more than five or ten pounds also caused " really bad" pain in his low back. (R. 65). When describing a typical day Mr. Rogers stated that he wakes up, eats breakfast, and takes care of his incapacitated father, who has both Parkinson's and Alzheimer's. (R. 59). He feeds him, dresses him, and provides care twenty-four hours a day, while also caring for his daughter as well. Id. Later, Mr. Rogers claimed he needed to stay in bed most of the day three or four days per month, due to back pain. (R. 66).

Mr. Rogers testified he went shopping for an hour or so every couple of weeks, drove his daughter to school every day and took his father to doctor's appointments. (R. 58, 59). He also takes out the garbage, does his own laundry, cares for himself, and goes to the movies three or four times a month. Id. He also goes to the bowling alley to watch his friends bowl. (R. 58).

The ALJ asked if he was seeing a doctor regularly, and Mr. Rogers said just his heart and diabetes doctors, but, later added he thought he saw his orthopedic doctor every couple of months. (R. 60, 65).

Mr. Rogers testified he would occasionally get dizzy or light-headed when his diabetes was not properly controlled. (R. 62). This occurred, " [o]nce in a blue moon." Id. After his attorney asked him, he agreed he had difficulty concentrating because of his back pain, especially when caring for his father and would take Aleve or use an IcyHot patch and lay down to alleviate the discomfort. (R. 67-68).

He denied any difficulties with depression. (R. 63). He complained of no heart ailments once he began taking medication. (R. 66). Mr. Rogers stated he only slept three or four hours per night and needed one or two hour naps during the day, but never felt completely refreshed. (R. 69). However, sometimes he did sleep the whole night. Id.

The Vocational Expert's Testimony

The vocational expert, Ms. Julie Bose, testified that Mr. Rogers' past work as a detailer/porter was rated as a medium position by the Dictionary of Occupational Titles, with an SVP: 2, unskilled. (R. 70). His next job as a janitor was rated as a medium position, again with a SVP: 2, unskilled. (R. 70). His job as a van driver was also a medium position, with an SVP: 3, low-end of semi-skilled. (R. 70-71). Mr. Rogers classified all work performed as " heavy" while it was generally classified as medium. Id.

Ms. Bose testified that a person with Mr. Rogers' age, education, and work experience

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who could only lift a maximum of ten pounds, and was limited to sitting fifteen minutes at a time, standing twenty minutes, and walking twenty minutes, and who could not kneel or squat, could not perform the past work performed by Mr. Rogers as it is customarily performed. (R. 71). If a person could sit for four hours in a workday, stand, or move for four hours and lift up to ten pounds, these restrictions would permit sedentary, unskilled work and she provided three job examples. (R. 71, 72).

During cross-examination by Mr. Rogers' attorney, Ms. Bose testified that a person in such a position requiring three to four days off work due to unscheduled treatment would eliminate all available positions. (R. 73). A new employee could have at most ten to fourteen absences in a year. (R. 73-74). Upon further questioning, Ms. Bose stated a loss of concentration during the workday of 34-66% would rule out the listed jobs. (R. 74).


The ALJ found that Mr. Rogers met the insured status requirements of the Social Security Act through Dec. 31, 2013 and that he had not engaged in substantial gainful activity since Oct. 1, 2008, the alleged onset disability date. (R. 13). He found five severe impairments: (1) degenerative disc disease at L3-L5, (2) L4 vertebral body deformity, (3) hypertension, (4) history of heart attack, and (5) diabetes mellitus. (R. 13). The ALJ found that these impairments limited Mr. ...

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