The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendant Barton Healthcare Systems' ("defendant" or "Barton") second motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Susan Reese ("plaintiff" or "Reese") opposes the motion. For the reasons set forth below,*fn1 defendant's motion is DENIED.
This case arises out of plaintiff's claims that she was terminated as a result of her disability and for asserting that her disability was not being accommodated by defendant. On October 9, 2009, six months prior to the discovery deadline, defendant filed a motion for summary judgment, which the court continued in order to allow plaintiff to receive a request for production of documents and to conduct various depositions. On March 3, 2010, the court issued a Memorandum and Order, denying defendant's motion for summary judgment on all of plaintiff's claims.
On July 6, 2010, defendant filed a second motion for summary judgment after conducting the depositions of plaintiff's treating physicians, plaintiff's supervisor, and plaintiff's Worker's Compensation evaluating physician. Defendant contends that these depositions revealed new evidence that justifies entry of summary judgment.*fn2
Randy C. Watson, M.D. ("Watson") first treated plaintiff on September 10, 2007. (Dep. of Randy C. Watson, M.D. ("Watson Dep."), at 13; see Ex. 1 to Watson Dep.) Based upon plaintiff's own assessment that the pain in her shoulder got worse towards the end of the day and much worse when she performed over five echocardiograms ("echo tests") a day, Watson created a treatment plan to treat her with careful observation and put her on a restriction of doing five echo tests a day. (Watson Dep. at 14, 17-18.) On October 22, 2007, plaintiff told Watson that the pain in her shoulder was better because she had restricted her activities at work as recommended. (Watson Dep. at 20.) Similarly, on February 11, 2008, plaintiff told Watson that her shoulder and neck were "a little better"; Watson testified that the number of echo tests did not seem to be a problem because plaintiff told him she was conducting fewer exams due to scheduling of a traveling technician. (Ex. 8 to Watson Dep.; Watson Dep. at 37.) At this point, both plaintiff and Watson agreed that performing five echo tests a day was appropriate because plaintiff indicated that she was willing and able to tolerate any pain associated with that number of exams. (Watson Dep. at 37-38.) Finally, on her last exam with Dr. Watson before her termination, performed on March 31, Watson reported that the restriction on echo exams appeared to have helped with the pain. (Watson Dep. at 40.) The report also noted that plaintiff's work hours had been cut back and that she received a smaller paycheck as a result of the reduction in hours. (Id.)
On April 9, 2008, after she had been terminated on April 3, 2008, plaintiff had another exam with Watson, where he reported that her symptoms have gotten much worse. (Watson Dep. at 41.) Watson noted that on April 1, plaintiff had reported increased pain in both shoulders, along with headaches and neck pains. The headache and neck pain persisted the next day, April 2. After she went back to work, plaintiff called to see if she could get an off work note, but was told she needed to come in for an evaluation, which she did on April 9. (Id. at 42.) Watson testified that based upon her physical condition on April 9, 2010, had plaintiff not been terminated, he would have recommended that she not work for at least two weeks from the date of the visit. (Id. at 46.) Subsequently, on April 23, 2008, Watson testified that she had not made any improvement and recommended that she continue the off work status. (Id. at 47.)
On April 9, 2008, Watson completed a disability form on plaintiff's behalf, stating that plaintiff was incapable of performing her customary occupation. (Id. at 52-53.) This same information was submitted again on May 27, 2008, and ultimately, Watson recommended that plaintiff's off work status be continued until September 1, 2008 because of continued pain and weakness. (Id. at 54-55.) However, Watson testified that he never considered nor discussed with plaintiff whether she could return to work with a restriction on the number of echo tests she performed because "it was a moot point" as a result of her termination in April 2008. (Id. at 56.) As such, Watson did not include such a determination in his reports. (See id.)
2. Michael Patrick Sullivan, M.D.
Michael Patrick Sullivan, M.D. ("Sullivan") is plaintiff's Neurologist and has treated her since January 11, 2008. (Decl. of Michael P. Sullivan in Supp. of Opp'n to Mot. for Summ. J. ("Sullivan Decl."), filed July 23, 2010, at 1.) In a Physician's Supplementary Certificate submitted to the Employment Development Department in support of continuing plaintiff's disability benefits, Sullivan noted that plaintiff was unable to sustain the postures needed to work as an echo tech. (Dep. of Michael Patrick Sullivan, M.D. ("Sullivan Dep.") at 64-65.) Sullivan further testified that as of April 2009, there had been no change in her condition that would suggest she could return to work. (Id. at 71.) However, Sullivan also noted that plaintiff thought she could perform limited echo tests, but that such a position was not available. (Id. at 72.) Further, in his declaration, Sullivan states that if plaintiff were permitted to continue to perform no more than five echo tests a day, she could work there long term. (Sullivan Decl. at 3.)*fn3
3. J. Conrad Clifford, M.D.
J. Conrad Clifford, M.D. ("Clifford") is a worker's compensation evaluator who evaluated plaintiff in January 2010. (Dep. of J. Conrad Clifford, M.D. ("Clifford Dep.") at 7-8.) Clifford spent approximately four hours reviewing medical records and forty minutes with plaintiff. (Id. at 8.) He testified that he believed that if plaintiff continued work as an echo technician, it would likely worsen her condition and that, unless changes could be made in the work, she should not continue for fear of greater injury and increasing pain. (Id. at 16.) However, he also testified that ...