United States District Court, E.D. North Carolina, Southern Division
MEMORANDUM & RECOMMENDATION
T. Numbers, II United States Magistrate Judge
Carolyn Pickett instituted this action in December 2017 to
challenge the denial of her application for social security
income. Pickett claims that the Administrative Law Judge
(“ALJ”) Edward T. Morriss erred in (1)
determining her residual functional capacity
(“RFC”), (2) failing to assign weight to a
previous disability finding, and (3) failing to obtain
vocational evidence. Both Pickett and Defendant Nancy A.
Berryhill, Acting Commissioner of Social Security, have filed
motions seeking a judgment on the pleadings in their favor.
D.E. 18, 20.
reviewing the parties' arguments, the court has
determined that ALJ Morriss erred in his determination. ALJ
Morriss properly determined Pickett's RFC and, in doing
so, considered all of her exertional and non-exertional
impairments. But the undersigned cannot conclude that
substantial evidence supports his step four finding given
both the previous disability determination and the lack of
vocational evidence on her previous work. Therefore, the
undersigned magistrate judge recommends that the court grant
Pickett's motion, deny the Commissioner's motion, and
remand this matter to the Commissioner for further
April 2014, Pickett applied for disability income, alleging a
disability that began in September 2005. After her claim
was denied at the initial level and upon reconsideration,
Pickett appeared before ALJ Morriss for a hearing to
determine whether she was entitled to benefits. ALJ Morriss
determined Pickett was not entitled to benefits because she
was not disabled. Tr. at 29- 35.
Morriss found that Pickett had severe impairments of
degenerative disc disease and degenerative joint disease of
the left knee. Tr. at 31. ALJ Morriss also found that
Pickett's impairments, either alone or in combination,
did not meet or equal a Listing impairment. Id.
Morriss then determined that Pickett had the RFC to perform a
full range of light work. Tr. at 32. ALJ Morriss concluded
that Pickett was capable of performing her past relevant work
as a machine feeder. Tr. at 35. Thus, ALJ Morriss found that
Pickett was not disabled. Id.
unsuccessfully seeking review by the Appeals Council, Pickett
began this action in December 2017. D.E. 6.
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. Chater,
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. But 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).
has a history of back and knee problems. She first injured
her back in 2005 while working. Tr. at 45. Dr. Naseem
Nasrallah treated her for back pain, knee pain, and muscle
spasms, and prescribed medications. Tr. at 219-20. After Dr.
Nasrallah's retirement, Dr. Linda Greenspan provided
primary care to Pickett. Tr. at 204.
September 2009, an examination of Pickett showed that her
muscle tone, muscle strength, tendon reflexes, and joint
function were all normal. Tr. at 34. A July 2010 examination
noted a bony deformity in Pickett's left knee with
crepitus and pain with movement. Tr. at 71. Mild edema was
present in her lower extremities. Tr. at 34. Pickett took
medication for her back pain, which was described as stable.
November 2010, an examination noted mild knee swelling and
crepitus but good pedal pulses bilaterally. Id. Pain
caused Pickett a decreased range of motion. Id.
months later, an examination found tenderness in the lumbar
paraspinal muscles and SI joints, and pain with flexation and
extension. Tr. at 71. An MRI taken at that time showed lumbar
spondylosis at ¶ 3-4 and L4-5. Id.
2012, Pickett reported worsening knee pain. Tr. at 34.
Although she displayed good strength and tone, Pickett had a
decreased range of motion, mild swelling, and tenderness.
Id. An x-ray taken the next month showed mild
osteoarthritis without effusion. Id.
being approved for Medicaid in 2014, Pickett saw Dr. Harry
Stafford, who prescribed a knee brace for her. Tr. at 47, 56.
In 2016, Pickett underwent bilateral knee replacement
surgery.D.E. 19-3. She uses a cane ...