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Pickett v. Commissioner of Social Security

United States District Court, N.D. Ohio, Western Division

July 22, 2019


          Jack Zouhary Judge




         Plaintiff 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.

         Procedural Background

         Plaintiff 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).[1] 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).

         Factual Background

         Personal Background and Testimony

         Born in 1970, Plaintiff was 46 years old at the time of the ALJ hearing. See Tr. 128, 455.

         Plaintiff 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. Id.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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 minutes. Id.

         Plaintiff 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.

         During 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).

         Plaintiff estimated she could lift about ten pounds, stand about fifteen minutes, and sit for an hour. (Tr. 151).

         Relevant Medical Evidence[2]

         Prior 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.

         In 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).

         Also in 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).

         Plaintiff 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).

         In the 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).

         In 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 raising. Id.

         Plaintiff 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.

         Also in 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 symptoms.” Id.

         At an 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).

         Throughout 2013 and 2014, Plaintiff also treated with her primary care physician Roberta Guibord, D.O., for diabetes, hyperlipidemia, osteoarthritis, sleep ...

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