United States District Court, N.D. Ohio, Western Division
REPORT AND RECOMMENDATION
R. KNEPP II UNITED STATES MAGISTRATE JUDGE
Bernadette Reyes Pickett (“Plaintiff”) filed a
Complaint against the Commissioner of Social Security
(“Commissioner”) seeking judicial review of the
Commissioner's decision to deny disability insurance
benefits (“DIB”). (Doc. 1). The district court
has jurisdiction under 42 U.S.C. §§ 1383(c) and
405(g). This matter has been referred to the undersigned for
preparation of a report and recommendation pursuant to Local
Rule 72.2. (Non-document entry dated May 7, 2018). Following
review, and for the reasons stated below, the undersigned
recommends the decision of the Commissioner be remanded
pursuant to Sentence Six of 42 U.S.C. § 405(g) for
consideration of new and material evidence.
filed for DIB in February 2015, alleging a disability onset
date of November 25, 2013. (Tr. 455-56). Her claims were
denied initially and upon reconsideration. (Tr. 310-13,
317-19). Plaintiff then requested a hearing before an
administrative law judge (“ALJ”). (Tr. 324).
Plaintiff (represented by counsel), and a vocational expert
(“VE”) testified at a hearing before the ALJ on
December 2, 2016. (Tr. 121-72). On May 24, 2017, the ALJ found
Plaintiff not disabled in a written decision. (Tr. 19-43).
The Appeals Council denied Plaintiff's request for
review, making the hearing decision the final decision of the
Commissioner. (Tr. 1-6); see 20 C.F.R. §§
404.955, 404.981. Plaintiff timely filed the instant action
on May 7, 2018. (Doc. 1).
Background and Testimony
1970, Plaintiff was 46 years old at the time of the ALJ
hearing. See Tr. 128, 455.
testified in December 2016 to difficulty driving due to leg
numbness and right wrist pain. (Tr. 128). She had a car
accident several months prior due to the leg numbness.
lived in a two-story house with her father, two daughters,
and two granddaughters. (Tr. 132-33). She no longer went
upstairs because it was “too dangerous”; she had
“tried and it [was] very painful and coming down, it
[took her] forever.” (Tr. 132-33).
previously had injections in her lower back, which helped
“[a] little bit”, but her pain had flared up due
to “a couple” of falls. (Tr. 134). She testified
these falls were due to an ear infection that caused
Bell's Palsy. (Tr. 134-35). Plaintiff's back pain
traveled from her neck into her left shoulder and arm, as
well as into her right leg. (Tr. 135). Plaintiff's right
knee also sometimes “lock[ed] up” and caused her
to fall. (Tr. 136).
also had difficulty with her right wrist. (Tr. 136-37). She
had a hard time holding things, opening packages, buttoning,
and zipping. Id. Her physician told her she needed a
total wrist replacement. Id. She also had left
shoulder problems for approximately six months; she had pain
reaching overhead and to the front, but could reach to the
side. (Tr. 144). Plaintiff's right shoulder was better,
but after reaching, “it just starts to kill my neck and
my mid-back”. (Tr. 144-45). She could move her head
side to side, but had pain looking up and down. (Tr. 145).
Plaintiff estimated she could look down for about five
also testified to health problems related to diabetes, COPD,
asthma, and mental health issues. (Tr. 137-41, 146-47). She
had Bell's Palsy, but said physicians did not know
whether it was temporary or permanent. (Tr. 141). She
testified she was “starting to lose sight out of [her]
left eye” and “[e]verything [was] blurry on
[that] side.” Id. She had not been to the eye
doctor. (Tr. 141) (“I had just left before this
happened, so I don't know if my insurance is going to
cover it again.”). The Bell's Palsy caused problems
with the left side of her face. Id. (“I tear a
lot, I drool, I can't eat right. I make a mess. . . . I
can't smile. I scare people. I talk funny.”).
Plaintiff also testified that she had been “flagged for
lupus”, but did not know if she had been diagnosed, and
that rheumatoid arthritis was ruled out. (Tr. 142). She was
under the care of a rheumatologist. Id.
the day, one of Plaintiff's daughters, and one
four-year-old granddaughter were at home with her. (Tr. 147).
She played and watched television with her granddaughter.
(Tr. 147-48). She did “very little” household
chores; she could do dishes (taking breaks to sit in a chair
to rest), fold clothing, and prepare simple meals, but could
not mop or sweep or vacuum. (Tr. 148). She only grocery
shopped with someone else, and had not been to the store
alone in about a year. Id. She “use[d] the
cart” because it was difficult to walk. (Tr. 149).
estimated she could lift about ten pounds, stand about
fifteen minutes, and sit for an hour. (Tr. 151).
to her alleged onset date, in July 2013, Plaintiff underwent
an enhanced brain CT scan due to right-sided facial numbness.
(Tr. 1098). It was negative. Id.
September 2013, Plaintiff slipped and fell on a wet floor at
work and reported pain in her right wrist, knee, and low
back. See Tr. 608, 621, 775. Right wrist x-rays were
normal. (Tr. 761). A lumbar spine MRI the following month
revealed a left paracentral disc bulge/protrusion with
impingement of the left nerve root, degenerative disc
changes, disc desiccation at L4-L5 and L5-S1, and
“[v]ery mild” narrowing of the central canal at
L4-L5 and “minimal” at L3-L4. (Tr. 740-41).
Another provider later indicated the MRI showed “a
ruptured disc with impingement at the T11-T12 level.”
(Tr. 624). A right wrist x-ray in December 2013 revealed
“[m]ild degenerative change without acute ossific
abnormality identified.” (Tr. 634).
December 2013, Plaintiff underwent a medical examination with
Douglas Gula, D.O., related to her worker's compensation
claim. (Tr. 621-27). Dr. Gula noted Plaintiff had tenderness
and some reduced range of motion in her lumbar spine, but had
a non-antalgic gait, was able to toe and heel walk, and was
able to sit and stand without difficulty. (Tr. 623). She also
had full motor strength in her lower extremities.
Id. Dr. Gula stated Plaintiff could return to work
without restriction. (Tr. 627).
went to the emergency room twice in early 2014 for lower back
pain. (Tr. 603-06, 729-32, 842-46). In January, an
examination revealed back tenderness, but a normal range of
motion, and no pain with straight leg raise. (Tr. 731). In
March, examination again revealed back tenderness. (Tr. 844).
Plaintiff had a normal neurological examination at both
visits. (Tr. 731, 845) When Plaintiff saw with Timothy
Haupricht, C.N.P., in April 2014, she had no tenderness,
mostly normal motor strength and sensation, and a right
straight leg raise was negative “but cause[d] guarding
and facial grimace due to right lumbar pain. (Tr. 840).
following months, Plaintiff underwent physical therapy.
See generally Tr. 1822-80. In July, Leo Clark, M.D.,
reviewed Plaintiff's records and noted that he found
“no objective neurological deficits and therefore [did]
not urge surgical intervention.” (Tr. 643). His
examination revealed normal motor, sensory, and reflex
findings. (Tr. 642).
August 2014, Plaintiff saw Merris Young, M.D. (Tr. 805-06).
Plaintiff “ambulated with a waddle”, but did not
limp and was able to walk on her heels and toes
“without difficulty”. (Tr. 805). Plaintiff had no
tenderness, but had some guarding, and positive straight leg
went to the emergency room for low back pain in October 2014.
(Tr. 1113-16). She had lower back tenderness, but was
ambulatory with a steady gait and had an otherwise normal
examination. (Tr. 1114-15). Plaintiff returned in November
2014 with nausea and back pain/spasms; she was prescribed
medication. See Tr. 1112.
November 2014, Plaintiff began pain management treatment with
Elizabeth Fowler, M.D. (Tr. 974). Plaintiff reported wrist
pain that was “not a major problem”, along with
mid and lower thoracic pain. Id. On examination, Dr.
Fowler found spinal tenderness and muscle spasms, a positive
straight leg test, and positive Patrick's test on the
right. (Tr. 977). She was able to walk heel-to-toe, stand on
her heels and toes, and had full strength. Id. Dr.
Fowler noted Plaintiff had clinical evidence of myofascial
pain with right sacroiliitis, and possible right radicular
pain. Id. She also noted Plaintiff had a displaced
lumbar disc at ¶ 11-12 which might be contributing to
her pain, “although she has no radicular
examination related to her worker's compensation claim in
December 2014, Nathan Fogt, D.O., observed tenderness and
reduced range of motion in Plaintiff's spine. (Tr. 785).
2013 and 2014, Plaintiff also treated with her primary care
physician Roberta Guibord, D.O., for diabetes,
hyperlipidemia, osteoarthritis, sleep ...