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Pampuch v. Berryhill

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

January 29, 2018

Marci G. Pampuch, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         Plaintiff Marci G. Pampuch instituted this action on January 6, 2017, to challenge the denial of her application for social security income. Pampuch claims that the Administrative Law Judge ("ALJ") Joseph L. Brinkley erred in (1) failing to evaluate her psychological impairments under the special technique prescribed by the Regulations, and (2) failing to resolve conflicts between the testimony from the Vocational Expert ("VE") and the Dictionary of Occupational Titles ("DOT"). Both Pampuch 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. 20, 22.

         After reviewing the parties' arguments, the court has determined that ALJ Brinkley erred in his determination. Although he found Pampuch's mental impairments were non-severe, he failed to evaluate them under the special technique described in the Regulations. However, as to the step five finding, the VE sufficiently explained why an apparent conflict between her testimony and the DOT was inapplicable to the jobs identified. Therefore, the undersigned recommends that the court grant Pampuch's motion, deny Berryhill's motion, and remand the matter to the Commissioner for further consideration.[2]

         I. Background

         On June 18, 2015, Pampuch protectively filed an application for disability benefits, alleging a disability that began on February 1, 2014. After her claim was denied at the initial level and upon reconsideration, Pampuch appeared before ALJ Brinkley for a hearing to determine whether she was entitled to benefits. ALJ Brinkley determined Pampuch was not entitled to benefits because she was not disabled. Tr. at 11-21.

         ALJ Brinkley found that Pampuch had several severe impairments: obesity, diabetes mellitus, intestinal problems, a neck injury (status post fall and surgery), back problems, scoliosis, and carpal tunnel syndrome ("CTS") of the right hand. Tr. at 12. ALJ Brinkley found that Pampuch's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.

         ALJ Brinkley then determined that Pampuch had the residual functional capacity ("RFC") to perform a light work with additional limitations. Tr. at 14. Pampuch is limited to occasional, as opposed to constant, vertical and lateral rotation of the neck. Id. She is also limited to occasional use of her upper extremities for overhead lifting, reaching, pulling, and pushing bilaterally. Id. However, Pampuch can frequently use her dominant, right upper extremity to handle, finger, feel, and grasp. Id. Pampuch can occasionally crawl, kneel, bend, and climb stairs and ramps, and she can occasionally use her lower extremities to operate leg and foot controls. Id. Pampuch should avoid climbing ladders. Id.

         She should have only occasional exposure to extreme hot and cold temperatures, vibrations, and work hazards such as work around dangerous, moving mechanical parts, and unprotected heights. Id. Pampuch requires a sit/stand option allowing her to alternate between sitting, standing, and walking every 30 minutes and cannot leave her workstation except for regularly scheduled breaks. Id. She is able to sit for six hours in an eight-hour workday with interruptions and regularly scheduled breaks. Id. Pampuch can also stand for six hours in an eight-hour workday with interruptions and regularly scheduled breaks. Id.

         ALJ Brinkley concluded that Pampuch was incapable of performing any of her past relevant work. Tr. at 19. But ALJ Brinkley determined that, considering Pampuch's age, education, work experience, and RFC, there were other jobs that existed in significant numbers in the national economy that Pampuch was capable of performing. Tr. at 23. These include: office helper and cashier II. Tr. at 20. Thus, ALJ Brinkley found that Pampuch was not disabled. Tr. at 21.

         After unsuccessfully seeking review by the Appeals Council, Pampuch commenced this action in January 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. Chater, 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

         Pampuch has a history of neck and back problems. Pampuch reported that she began experiencing neck issues in 2001. Tr. at 15. She had a pinched nerve and underwent surgery. Id. Although she experienced initial improvement, by 2006 Pampuch she began experiencing problems again with her neck. Id. In 2007, she fell at work, injuring her lower back. Id. She reported that her back condition never improved. Id.

         Pampuch stated that by 2008, her pain had worsened and she had difficulty lifting and driving. Id. She also reported that she had a curve in her back since she was a teenager, and that it had worsened over the years. Id. Despite treatment with medication, physical therapy, and visits to a chiropractor, Pampuch had limitations in pushing, pulling, and lifting, as well as with sitting, standing, and walking. Id. Pampuch reported that she constantly shifted her body to alleviate pain. Id.

         Pampuch stated that she was able to perform her activities of daily living, including cleaning, washing dishes, doing laundry, and looking after her grandchildren. Tr. at 16. Although she read and sewed, she could not hold her neck or ...


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