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Pickett v. Berryhill

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

January 28, 2019

Carolyn Dixon Pickett, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner for Operations, Defendant.

          MEMORANDUM & RECOMMENDATION

          Robert T. Numbers, II United States Magistrate Judge

         Plaintiff 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.

         After 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 consideration.[1]

         I. Background

         In April 2014, Pickett applied for disability income, alleging a disability that began in September 2005.[2] 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.

         ALJ 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.

         ALJ 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.

         After unsuccessfully seeking review by the Appeals Council, Pickett began this action in December 2017. D.E. 6.

         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. 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).

         C. Medical Background

         Pickett 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.

         In 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. Id.

         In 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.

         Four 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.

         In July 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.

         After 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.[3]D.E. 19-3. She uses a cane ...


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