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Rogers v. Colvin

United States District Court, D. South Dakota,

September 30, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERTO A. LANGE, District Judge.

Plaintiff Margaret E. Rogers seeks review of the denial by the Commissioner of Social Security (the Commissioner) of her claim for social security disability insurance (SSDI) under Title II of the Social Security Act (the Act), 42 U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1382. Docs. 1, 14. The Commissioner argues for affirming the denial of benefits. Doc. 16. For the reasons set forth herein, this Court affirms the Commissioner's decision.


Rogers applied for SSI and SSDI on November 18, 2010, alleging disability since July 1, 2010. AR[1] 10, 150, 211-24, 257, 259. The Social Security Administration (SSA) denied Rogers's application on initial review and on reconsideration. AR 150-53, 160-62. Rogers subsequently requested an administrative hearing and appeared with attorney John A. Hamilton[2] before Administrative Law Judge Robert Maxwell (ALJ) on April 12, 2012. AR 166-67, 181, 198-204. Thereafter, the ALJ issued an unfavorable decision finding that Rogers had the residual functional capacity to perform "seated-light exertional level work" with various exceptions. AR 15. The ALJ denied Rogers's claims, concluding that she was not disabled and was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." AR 23. Rogers timely appealed the All's decision and requested review by the Appeals Council. AR 30, 35, 334-79. After the Appeals Council denied review, AR 1-6, Rogers commenced this action seeking judicial review of the Commissioner's denial of her claim for SSI and SSDI. Doc. 1.


A. Rogers's Background and Work

Rogers was born in July of 1963. AR 211. At the time of her administrative hearing, Rogers was 48 years old. AR 50. Rogers completed the eleventh grade and later received her GED. Id . Rogers worked part-time for the United States Postal Service in Parmelee, South Dakota, from at least January 2000 to February 2008.[3] AR 61-62, 229-30, 284. Rogers then worked in Rapid City, South Dakota, first as a cashier at the SuperPumper from March 2008 to September 2008, and then as a front desk clerk at the Super 8 Motel from May 2008 to July 2008. AR 276, 284. In September 2008, Rogers began working as a laundry attendant at Kings Inn Hotel in Pierre, South Dakota, where she loaded washers and dryers and folded clean laundry for seven to eight hours per day, five to six days per week, until February 2009. AR 276, 283.

Rogers next worked as a cashier at Fresh Start Checkers in Pierre from April 2009 to May 2009, where she waited on customers, operated the cash register, and cleaned the interior premises for six to seven hours per day, five days per week. AR 276, 282. From August 2009 to October 2010, Rogers worked at the Ft. Pierre Motel in Fort Pierre as a housekeeper for three to four hours per day, five days per week. AR 276, 281. Rogers then worked as a casino attendant at Happy Jack's Casino in Pierre seven hours per day, five days a week, where she waited on customers and filled out end-of-the-day accounting sheets for seven hours per day, five days per week. AR 276, 280. During a portion of that time, from approximately June 2010 to September 2010, Rogers also handled cleaning tasks at the Pierre Humane Society for two hours per day, two days per week. AR 276, 279. Rogers left the job at Happy Jack's Casino because her work hours were being cut, AR 57, and stopped working at the Humane Society because she was no longer needed there. AR 253.

In September 2010, Rogers began working as a cashier at Loopy's Dollar Store in Pierre, where she priced items, assisted customers, operated the cash register, and inflated balloons. AR 51, 276, 278. At Loopy's Dollar Store, Rogers worked thirty hours per week, five days per week, but her work days were spread out so that she could rest after working two or three days in a row. AR 55. Rogers had been working at Loopy's Dollar Store for approximately two months when she filed her inatal applications for SSI and SSDI in November of 2010, which in turn alleged disability since July 1, 2010, which was when Rogers was working at both Happy Jack's Casino and the Pierre Humane Society. AR 10, 150, 211-24, 257, 259, 276-280.

Rogers continued to work less than full time but typically around thirty hours per week at Loopy's Dollar Store until February of 2012, when the store closed. AR 51-52. Rogers testified that she missed some work, sometimes taking an entire day off, and other times leaving work early due to her pain and fatigue. AR 52. Rogers testified that her work activities at Loopy's Dollar Store were limited. For example, she could not pick up or move boxes, AR 53; she could not use a pricing gun for more than forty-five minutes without her arm hurting and losing the ability to squeeze, AR 52-53; she could not stock shelves because her knee prevented her from using a ladder or step stool, AR 54; and she could not stand or sit for extended periods of time, AR 54. Rogers further testified that her pain and fatigue got worse from the beginning to the end of a shift, and that she would feel exhausted when she got home from work, oftentimes having to sleep for a couple hours. AR 55-56. Rogers testified that she would not be able to do a job like the one she had at Loopy's Dollar Store on a full-time basis. AR 56.

On May 13, 2011, Judy Weldin, Rogers's supervisor at Loopy's Dollar Store, completed a Job Performance Questionnaire regarding Rogers's work abilities. AR 300-03. Weldin at that time wrote that Rogers needed to sit every fifteen minutes when working and was limited in working at a consistent pace because of pain. AR 302. Weldin, in that questionnaire, however, described Rogers as "very productive" in her ability to meet quality and production standards and as an employee who would work easily on her own and always found work to do. AR 302-03. After Loopy's Dollar Store closed and after Rogers obtained counsel in 2012, Weldin completed a more detailed Job Performance Questionnaire concerning Rogers, describing that Rogers's job performance had worsened, that Rogers had become slower in her work, and that Rogers had been working with difficulty due to experiencing much pain. AR 326-31.

Rogers looked for other jobs after Loopy's Dollar Store closed, but none of her applications resulted in her being hired, leaving her to believe that nobody was hiring in Pierre at the time. AR 62-63. Rogers's earnings have not surpassed $12, 000.00 in any year since 2008, AR 82, 228, and her jobs in the above time-frame paid wages at or near minimum wage pay, AR 278-83. At the time of the administrative hearing, Rogers was no longer working in any capacity.

B. Rogers's Claims and Medical History[4]

In her initial applications for SSI and SSDI benefits, Rogers claimed disability due to chronic back pain and sleep apnea. AR 150, 259. In her appeal, Rogers cited as additional conditions a knee injury and the presence of constant pain in her right hip, leg, and back, with an onset date of approximately February 1, 2011. AR 285. During the administrative hearing, Rogers testified about having sleep apnea, issues with her knee, degenerative osteoarthritis in her neck and spine, pain down her right leg, and carpal tunnel in both wrists. AR 63-64. As is relevant to this case, [5] medical records indicate that Rogers has a history of degenerative disc disease in her low back, with radiating pain in her legs, a right knee injury, carpal tunnel bilaterally, sleep apnea, daytime somnolence, occasional neck pain, tobacco dependence, and weight problems. AR 380-85, 402-03, 438, 444, 451, 471, 477-80, 484-85, 508-10, 515, 519, 523, 536, 570-71, 580, 582, 626, 629, 641, 643-44. At least some of these conditions predate the medical records within the Administrative Record.

The earliest mention in the Administrative Record of Rogers's back issues is from Rosebud Indian Health Services (Rosebud IHS) records of October 3, 2002, when Rogers saw a physical therapist for back and neck pain that had "worsened last month." AR 644. That record referred to Rogers's having experienced low back pain for the last three years without an injury known and with tingling down her left leg particularly when sitting. AR 644. Rogers underwent a course of physical therapy at Rosebud IHS for the low back condition with visits on November 8, November 15, November 21, November 26, December 9, and December 12 of 2002. AR 641-44.

In 2006, Rogers had a recurrence of back pain caused by moving a four-foot square of plywood. AR 380-83. Dr. Christina J. Cote, on May 3, 2006, evaluated Rogers at Winner Regional Healthcare Center. An x-ray taken at the time found no compression fractures or definite subluxation, good overall alignment of lumbar vertebrae, disc spaces fairly well maintained, but some paraspinal calcifications at around the L-1 level. AR 383-84.

In January of 2007, Rogers was seen at Rosebud IHS for a complaint of abdominal pain from lifting heavy boxes, but the record mentioned her history of back pain. AR 631. On April 4, 2007, Rosebud IL-IS evaluated Rogers for back spasms with the purpose of the visit being "chronic low back pain" and "scoliosis of lower thoracic spine." AR 629. Although there are only a few physical therapy records contained in the Administrative Record and no chiropractic records whatsoever, the Rosebud IHS nevertheless stated "she's been to PT many times & to the chiropractor in Winner." AR 629. Rogers returned to Rosebud IHS for low back treatment on April 13, 2007. AR 626.

After Rogers moved to Pierre, her back condition became more troubling to her. Rogers initially used Rural Healthcare, Inc., d/b/a Oahe Valley Health Center in Pierre as her primary care provider and treated primarily with Physicians Assistant Julia Abraham (PA Abraham). On May 3, 2010, Rogers visited PA Abraham for heart palpitations, hip pain and foot pain. AR 403-04. Rogers's hip pain was worse on the left and was shooting down her legs. AR 403. PA Abraham's notes indicate that Rogers reported that she had been dealing with this hip pain condition "for a number of years and in the past [had] done an EMG study which did show an abnormality in nerve conduction and was diagnosed as sciatica." AR 403. PA Abraham noted "the chronic nature of her lower back pain and previous treatment" and ordered an MRI. AR 402.

The MRI of Rogers's back, done on May 11, 2010, at St. Mary's Healthcare Center, revealed "mild disc degenerative changes of the lumbar spine, " no significant spinal canal stenosis at any level, S2-3 left Tarlov cyst, [6] and "mild facet arthropathy throughout the lumbar spine." AR 570. The MRI findings included a small broad based disc bulge and a finding consistent with an annular tear[7] at L1-2, a mild broad based disc bulge and a small posterior annular disc tear at L2-3, a mild broad based disc bulge with a small posterior annular disc tear at L4-5, and a mild broad based disc bulge and a small posterior disc annular tear at L5-S1. AR 570. A handwritten note on the MRI report noted degenerative disc disease, but that Rogers remained "very symptomatic, " justifying a consultation. AR 570.

On May 13, 2010, Oahe Valley Healthcare Center referred Rogers to a neurosurgeon for an evaluation of back pain. AR 402. On May 27, 2010, Dr. Robert Ingraham, a Rapid City neurosurgeon, evaluated Rogers. Rogers presented with back pain, primarily in the right low back with pain down the right leg and hip, although some pain on the left side as well. AR 510. Rogers told Dr. Ingraham that the back symptoms began in about 2005, and that sometimes the pain increased becoming of a shooting nature. AR 510. Rogers had experienced no bowel or bladder incontinence. AR 510. Rogers stated that the leg and back pain were worse with standing for long periods of time and with any lifting or bending. AR 510. Rogers said that she lost sleep at times, but has not been missing any work. AR 510. Rogers reported never having been to a chiropractor, but having been in physical therapy in 2006 when the symptoms originally started which provided some temporary relief at that time. AR 510. Rogers stated that she had long-standing neck pain as well and that she felt "like both hands on occasion are weak" affecting her fine motor skills. AR 510. Rogers described her symptoms as worsening at the time. AR 510. As recorded throughout the medical records and by Dr. Ingraham in this instance, Rogers remained a cigarette smoker and had been smoking for many years. AR 511.

Dr. Ingraham's physical examination of Rogers revealed diffuse tenderness in her cervical spine, with no obvious deformity and only mildly decreased range of motion. AR 513. Rogers had no tenderness or obvious deformity in her thoracic spine. AR 513. The physical examination of her lumbar spine showed tenderness in both sacroiliac joints and bilateral greater trochanters, without obvious deformity. AR 513. Rogers had decreased range of motion of her lumbar spine. AR 513. Rogers's lower extremities, however, had full range of motion without evidence of obvious instability. AR 514.

Dr. Ingraham ordered lateral lumbar spine films, which appeared normal. AR 514. Dr. Ingraham interpreted the MRI, apparently the one done previously that month, as showing some degenerative disc disease and commented that an annular tear "may have some inflammatory products affecting the SI nerve root, but there is no impingement seen at S1 or at L4-5 for that matter." AR 514. Dr. Ingraham diagnosed back pain and leg pain, as well as possible carpal tunnel syndrome. AR 515. Dr. Ingraham ordered a nerve conduction study as a result, sent Rogers for an epidural steroid injection, and anticipated seeing Rogers after her nerve conduction study. AR 515. Rogers underwent an epidural steroid injection on June 23, 2010, at Black Hills Surgical Hospital to treat the back pain and radicular pain and the annular tears at L4-5 and L5-S 1. AR 521-522. On the same day, Rogers underwent an electrodiagnostic study at Neurology Associates in Rapid City. AR 517-519. On June 29, 2010, Rogers returned to PA Abraham at Oahe Valley Health Center, primarily because of anxiety in wanting to know her test results from the nerve conduction study. AR 399. PA Abraham noted "otherwise [Rogers] is doing okay but continues to have the back pain regardless of the previous injection" and talked with Rogers at length about smoking cessation. AR 399.

Rogers had her follow-up appointment with Dr. Ingraham on September 24, 2010. AR 523. Dr. Ingraham recorded that the epidural steroid injection "did not help." AR 523. Dr. Ingraham described the electrodiagnostic study as showing "a mild carpal tunnel bilaterally." AR 523. Dr. Ingraham's decision for how to treat the mild carpal tunnel syndrome was: "She has some braces that she has worn for this in the past. I told her to wear those again." AR 523. Dr. Ingraham's physical findings regarding Rogers's back were "unchanged, " and his assessment was of "degenerative disc disease and mild carpal tunnel bilaterally." AR 523. In addition to directing the wearing of splints for her carpal tunnel as part of the plan, Dr. Ingraham concluded: "For her low back pain, unfortunately we do not have anything to offer. She does not want to try any non-operative therapy. She said she has been through it all and it is just not working. Unfortunately, I do not see anything surgical that would help her." AR 523.

Prior to that September 24, 2010, visit to Dr. Ingraham, Rogers and PA Abraham had discussed an "unemployment form" that Rogers wanted to be completed. AR 392. On August 27, 2010, PA Abraham had talked with Dr. Ingraham's office about an unemployment form for Rogers. AR 392. Dr. Ingraham's office wanted to see Rogers back before filling out such a form. AR 392. PA Abraham encouraged Rogers to take the paper with her to the appointment with Dr. Ingraham, AR 392, but it is unclear whether Rogers did so on September 24, 2010. AR 523.

However, it is clear that on September 29, 2010, Rogers called to Dr. Ingraham's office "asking to talk to Dr. Ingraham about being put on disability." AR 524. A physicians assistant to Dr. Ingraham talked with Rogers and memorialized events as follows:

I had asked her if she thought she needed some time off of work and then she stated that she just started a new job[8] and doubted that they would give her time off of work. She wanted to know if we could help her get on disability. I reviewed her visit with Dr. Ingraham and did not feel that this would be a possibility through our office. I advised her that she should check with her primary care provider and/or possibly check with a rheumatologist because she has multiple joint pain type complaints. Dr. Ingraham did not see anything surgical and did want her to be seen by the Rehab Doctors, but she has not done this. She has not had any real conservative treatment either from a chiropractor or physical therapist. I reminded Margaret of these things and stated that she should go online and see what was required to receive social security disability since this is what she wants.

AR 524.

Rogers also had been experiencing difficulty sleeping. On October 6, 2010, she underwent a nocturnal polysomnogram at St. Mary's Healthcare Center at the request of PA Abraham and Dr. Anthony Hericks. AR 385. The impression from the nocturnal polysomnogram included "excessive daytime somnolence, most probably secondary to underlying obstructive sleep apnea. The patient is to use caution while driving and operating heavy equipment until her sleep apnea is well controlled." AR 385. Rogers was diagnosed with obstructive sleep apnea, severe, and significant nocturnal hypoxemia. AR 385-86; AR 441-42. Rogers was prescribed a CPAP[9] to assist her in sleep. AR 385, 441. It was at this point in November of 2010 that Rogers filed the initial application for SSI and SSDI based on low back pain and sleep apnea.

According to a pulmonary follow up with Dr. Hericks on January 21, 2011, the CPAP, when used, was effective in reducing Rogers's sleep apnea. Dr. Hericks confirmed Rogers's diagnosis of severe obstructive sleep apnea and excessive daytime somnolence, but added in the diagnosis obesity and tobacco dependence. AR 440. Dr. Hericks recommended continued use of the CPAP. AR 438 10. Rogers indeed felt more energy when using the CPAP. AR 65. Rogers, however, discontinued use of the CPAP later in 2011, because she was not able to ...

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