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Pickett v. Berryhill

United States District Court, E.D. North Carolina, Southern Division

January 24, 2018

Vanessa Kelly Pickett, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II, United States Magistrate Judge

         Plaintiff 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.

         After 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 consideration.[2]

         I. Background

         On July 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.

         ALJ 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.

         ALJ 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 gradually. Id.

         ALJ 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.

         After unsuccessfully seeking review by the Appeals Council, Pickett commenced this action in February 2017. D.E. 7.

         II. Analysis

         A. Standard for Review of the Acting Commissioner's Final Decision

         When a 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).

         B. Standard for Evaluating Disability

         In 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).

         C. Medical Background[3]

         Pickett's 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 1978. Id.

         Dr. 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 454.

         State 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.

         Pickett 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.

         D. Listing 12.05

         Pickett 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.

         1.Overview of ...


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