United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II, United States Magistrate Judge
Vanessa Kelly Pickett instituted this action on February 21,
2017, to challenge the denial of her application for social
security income. Pickett claims that the Administrative Law
Judge ("ALJ") Carl B. Watson erred in (1) failing
to find her impairments met the criteria of Listing 12.05,
and (2) failing to resolve conflicts between the testimony
from the Vocational Expert ("VE") and the
Dictionary of Occupational Titles ("DOT"). Both
Pickett and Defendant Nancy A. Berryhill, the Acting
Commissioner of Social Security, have filed motions seeking a
judgment on the pleadings in their favor. D.E. 17, 19.
reviewing the parties' arguments, the court has
determined that ALJ Watson erred in his determination.
Substantial evidence does not support his finding that
Pickett failed to establish the criteria of Listing 12.05.
Nonetheless, ALJ Watson's step five determination is
sound, as there is no conflict between the DOT and the
VE's testimony as to one of the jobs identified.
Therefore, the undersigned recommends that the court grant
Pickett's motion, deny Berryhill's motion, and remand
this matter to the Commissioner for further
30, 2013, Pickett protectively filed an application for
supplemental security income. On August 23, 2013, she
protectively filed an application for disability benefits. In
both applications, Pickett alleged a disability that began on
August 13, 2012. After her claims were denied at the initial
level and upon reconsideration, Pickett appeared before ALJ
Watson for a hearing to determine whether she was entitled to
benefits. ALJ Watson determined Pickett was not entitled to
benefits because she was not disabled. Tr. at 15-24.
Watson found that Pickett had several severe impairments:
mild deformity of the right hand due to old trauma with
arthritis, right elbow pain, mild arthritis in the knees,
hypertension, and borderline intellectual functioning. Tr. at
17. ALJ Watson found that Pickett's impairments, either
alone or in combination, did not meet or equal a Listing
impairment. Id. at 18.
Watson then determined that Pickett had the RFC to perform a
reduced range of medium work. Tr. at 20. Pickett can
frequently, but not constantly, push, pull, handle, and
finger with the right upper extremity. Id. She
cannot climb ladders, ropes, or scaffolds and she must avoid
working at unprotected heights. Id. Pickett is also
limited to simple, routine, repetitive tasks in an
environment where changes are infrequent and introduced
Watson concluded that Pickett was incapable of performing any
of her past relevant work. Tr. at 22. But ALJ Watson
determined that, considering Pickett's age, education,
work experience, and RFC, there were other jobs that existed
in significant numbers in the national economy that Pickett
was capable of performing. Tr. at 23. These include:
merchandise deliverer, furniture decal inspector, and box
bender. Id. Thus, ALJ Watson found that Pickett was
not disabled. Tr. at 24.
unsuccessfully seeking review by the Appeals Council, Pickett
commenced this action in February 2017. D.E. 7.
Standard for Review of the Acting Commissioner's Final
social security claimant appeals a final decision of the
Commissioner, the district court's review is limited to
determining whether, based on the entire administrative
record, there is substantial evidence to support the
Commissioner's findings. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971).
Substantial evidence is defined as "evidence which a
reasoning mind would accept as sufficient to support a
particular conclusion." Shively v. Heckler, 739
F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The
court must affirm the Commissioner's decision if it is
supported by substantial evidence. Smith v. Chafer,
99 F.3d 635, 638 (4th Cir. 1996).
Standard for Evaluating Disability
making a disability determination, the ALJ engages in a
five-step evaluation process. 20 C.F.R. § 404.1520;
see Johnson v. Barnhart, 434 F.3d 650 (4th Cir.
2005). The ALJ must consider the factors in order. At step
one, if the claimant is engaged in substantial gainful
activity, the claim is denied. At step two, the claim is
denied if the claimant does not have a severe impairment or
combination of impairments significantly limiting him or her
from performing basic work activities. At step three, the
claimant's impairment is compared to those in the Listing
of Impairments. See 20 C.F.R. Part 404, Subpart P,
App. 1. If the impairment is listed in the Listing of
Impairments or if it is equivalent to a listed impairment,
disability is conclusively presumed. However, if the
claimant's impairment does not meet or equal a listed
impairment, the ALJ assesses the claimant's RFC to
determine, at step four, whether he can perform his past work
despite his impairments. If the claimant cannot perform past
relevant work, the analysis moves on to step five:
establishing whether the claimant, based on his age, work
experience, and RFC can perform other substantial gainful
work. The burden of proof is on the claimant for the first
four steps of this inquiry, but shifts to the Commissioner at
the fifth step. Pass v. Chater, 65 F.3d 1200, 1203
(4th Cir. 1995).
academic records indicate that she attended special education
classes in elementary school. Tr. at 283-88. She repeated
second grade and her literary skills were described as
marginal. Id. Pickett graduated from high school in
Reuben Silver, a psychological consultant, examined Pickett
in September 2013. Tr. at 391-94. He diagnosed her with
borderline intelligence. Tr. at 393. He also opined that both
her fund of information and judgment were impaired. Tr. at
392-93. Ashly Weeks, M.A., another psychological consultant,
examined Pickett in May 2014. Tr. at 452-55. She assessed
Pickett with mild intellectual development disorder. Tr. at
agency reviewer, April L. Strobel-Nuss, Psy.D., noted
Pickett's difficulties with reading and writing. Tr. at
92. She opined that Pickett was capable of performing simple,
routine, repetitive tasks. Id.
testified that she lives with her mother. Tr. at 43. She can
manage "small reads" and she relies on assistance
from her niece to read the mail. Tr. at 386, 391. Dr. Silver
gave her a newspaper and noted that Pickett could not read it
very well. Tr. at 391. A home health aide assists Pickett
with dressing and grooming. Tr. at 18-19, 43-44. The nurse
also grocery shops for Pickett, who does not cook or clean.
Id. Her daily activities are limited to little more
than watching television. Id. She attends church
weekly. Tr. at 392.
contends that ALJ Watson erred by failing to find that her
impairments met the criteria for Listing 12.05. The
Commissioner maintains that ALJ Watson properly concluded
that Pickett failed to meet the criteria for this Listing.
The court cannot conclude that ALJ Watson's step three
determination is supported by substantial evidence. Thus,
remand is warranted.