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PICKETT v. BARNHART

July 6, 2004.

ROSA PICKETT, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER*fn1

The plaintiff, Rosa Pickett, brings this action pursuant to 42 U.S.C. § 405(g) to review a final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act ("Act"). Ms. Pickett filed an application for DIB and SSI on August 22, 2001, with a protective filing date of July 31, 2001 (Administrative Record ("R.") at 14, 80-82, 265-267). Ms. Pickett alleged that she became disabled on January 24, 2001, due to bilateral carpal tunnel syndrome, asthma, numbness in her hands, and chest pain (R. 76-79). Her application was denied at the initial levels of administrative review (R. 76-79, 268-69), and she requested an administrative hearing (R. 39-40). On April 15, 2003, an administrative law judge ("ALJ") conducted a hearing at which Ms. Pickett, represented by counsel, appeared and testified (R. 41-75). In addition, Elizabeth Clem testified as a vocational expert (R. 69-73). In a decision dated October 24, 2003, the ALJ found that Ms. Pickett was not disabled because she retained the ability to perform her past work as either a nurse's aid or a packager in a greeting card factory (R. 14-20). This became the final decision of the Commissioner when the Appeals Council denied Ms. Pickett's request for review of the decision on June 12, 2003 (R. 4-5).

Ms. Pickett now seeks summary judgment reversing the Commissioner's decision denying her DIB and SSI or, in the alternative, remanding the case for further proceedings (Doc. # 18). The Commissioner has filed a cross-motion for summary judgment to affirm her decision below (Doc. # 20). For the reasons stated below, the Court grants Ms. Pickett's motion for summary judgment and, remands the case for further proceedings; the Court denies the Commissioner's motion for summary judgment.

  I.

  Ms. Pickett was born on January 30, 1961, making her forty-two years old at the time of the ALJ's decision (R. 80). She is single and has two children (R. 49). She is right-handed (R. 57), is 5' 9" tall, and weighs 245 pounds (R. 50, 185). Ms. Pickett attended school through the eleventh grade, and was in some special education classes (R. 23). She later obtained a nurse's assistant certificate after completing a vocational school course (R. 49-50). From the year 2000 through 2001, Ms. Pickett worked in a greeting card factory, where she performed various jobs among several departments, including packaging greeting cards and driving a forklift (R. 70, 118). She has briefly held several other similar factory jobs, as well as a few other short-lived positions (R. 45-47, 118). In addition, Ms. Pickett worked as a certified nurse's assistant — the position she held the longest — at a mental health facility, from 1993 until 1996 (R. 71, 118). She traces the onset of her disability to January of 2001 when, in addition to her carpal tunnel syndrome, she "started having problems with everything" (R. 47-48).*fn2

  A.

  The relevant medical record in this case begins on January 24, 2001, when Ms. Pickett was hospitalized at the Baptist Memorial Hospital in Osceola, Arkansas, for two days with complaints of chest pains (R. 198). There is apparently no record of this hospitalization, but shortly thereafter, on February 6, 2001, Ms. Pickett followed up with Dr. D.V. Patel at the Northeast Arkansas Clinic, and related her experience (Id.). The pains were sharp, and radiated from the left side of her chest to her left arm and back (Id.). Ms. Pickett also experienced shortness of breath, diaphoresis, and nausea (Id.). She was treated with aspirin, and it took two to three hours for the pain to subside (Id.).

  Ms. Pickett told Dr. Patel that she was in constant pain (Id.). At that time, she was taking Celebrex for osteoarthritis, and Propo-N/APAP and Tylenol as needed for pain (Id.). Ms. Pickett stated she had asthma, but smoked four or five cigarettes a day (Id.). She complained of joint pain and depression (R. 199). An EKG showed normal sinus rhythm, but also demonstrated anterolateral ischemia (Id.).*fn3 Dr. Patel diagnosed asthma, and chest pain of questionable etiology (R. 200). On Dr. Patel's recommendation, Ms. Pickett underwent a stress echocardiagram the following day with normal results, and demonstrated a fair exercise tolerance (R. 196).

  On March 7, 2001, Ms. Pickett underwent a nerve conduction study of her upper extremities at the Northeast Arkansas Clinic (R. 194-95). The results were consistent with mild carpal tunnel syndrome bilaterally (R. 195). On March 21, 2001, Ms. Pickett was told she could return to work at the greeting card factory by March 26, but was instructed to wear braces on both wrists (R. 162). On March 23, however, she was noted to have limited repetitive use of both hands (Id.). The following week, Ms. Pickett returned to the clinic to inquire about carpal tunnel surgery, and she was referred for an orthopedic evaluation (Id.).

  On April 3, 2001, Dr. James Marvel evaluated Ms. Pickett's carpal tunnel syndrome at the clinic (R. 167). Ms. Pickett reported that she had been unable to work from January 24 through March 26, 2001 (Id.). Dr. Marvel characterized the results of the nerve conduction study as revealing bilateral carpal tunnel syndrome, which was "quite mild" on the left side (Id.). He noted that Ms. Pickett was taking Celebrex, Tylenol with codeine, Prevacid for stomach acid, and using an Albuterol inhaler for asthma (Id.). Upon examination, Dr. Marvel found that clinical signs were positive for carpal tunnel syndrome on the right side (R. 168). In addition, there was tightness in the muscles on the left side of the base of Ms. Pickett's neck (Id.). He recommended physical therapy for this, and carpal tunnel release surgery for Ms. Pickett's right hand (Id.). Ms. Pickett also had a chest x-ray at the clinic that day, the results of which were consistent with asthma or bronchitis (R. 153).

  Ms. Pickett underwent carpal tunnel release surgery on her right hand on April 19, 2001 (R. 147). By April 26, she reported that her right hand was feeling much better (R. 165). Her right hand continued to heal well and, while not at full strength, it was making progress through July 9, 2001 (R. 160-61, 163-64). At that time, Dr. Marvel noted that Ms. Pickett's right hand was "doing fine," but felt she had become a candidate for carpal tunnel release surgery on her left hand (R. 160). The doctor next saw Ms. Pickett on July 16, 2001, at which time he found her surgical scar was well-healed (R. 145). As for her left hand, Dr. Marvel reported that there was good thenar*fn4 strength, although clinical signs were mildly positive for carpal tunnel syndrome (R. 145).

  Ms. Pickett had carpal tunnel release surgery on her left hand on July 27, 2001 (R. 142-43). On August 16, 2001, Dr. Marvel reported that Ms. Pickett's left hand had healed, but that she had decreased sensory function in the ulnar side of her right hand (R. 158). This additional problem involved a different nerve than the one that had been freed by the surgery (Id.). By September 28, 2001, the doctor felt Ms. Pickett's hands were "doing relatively well" (R. 181). There continued to be decreased ulnar nerve sensation in her right hand, however, and Dr. Marvel thought she might benefit from ulnar nerve surgery (Id.).

  In connection with Ms. Pickett's August 21, 2001 application for DIB and SSI, a state disability agency physician reviewed the preceding medical records and, on October 5, 2001, found that Ms. Pickett could occasionally lift or carry up to fifty pounds, frequently lift or carry up to twenty-five pounds, stand or walk about six hours of an eight-hour workday, sit about six hours of an eight-hour workday, and push or pull hand or foot controls without limitation (R. 173-78). On December 12, 2001, a second state disability agency physician conducted a similar review, and concurred in that assessment (R. 178).

  On January 17, 2002, Ms. Pickett sought an assessment of her mental state at Mid-South Health Systems, and had an interview with a social worker there, Barbara Weaver (R. 221-24). Ms. Pickett reported that she had experienced depressive symptoms since 1993, including depressed mood; crying spells; decreased sleep, appetite, and energy; hopelessness; and anhedonia (Id.). The symptoms had become worse since she had been diagnosed with carpal tunnel syndrome (Id.). According to Ms. Pickett, that condition had precipitated the loss of her job due to "improper medical leave" (R. 224). Ms. Pickett stated she had thought about suicide a week prior to the assessment, and had been hearing voices in her head arguing as to whether she should kill herself (R. 221). Ms. Pickett related that she had been a marijuana and cocaine user in the past, but had not used any in the last eight years after going through rehabilitation (R. 222). Ms. Weaver's impression was that Ms. Pickett had a major recurrent depressive disorder and a mild anxiety disorder, and that malingering needed to be ruled out (Id.). Ms. Pickett was admitted as an outpatient on a voluntary basis for a course of individual therapy sessions (Id.).

  Ms. Pickett had a session with a psychiatrist, Dr. David Erby, on February 11, 2002 (R. 216-217). Dr. Erby noted Ms. Pickett had a ten-year history of depression but had not previously sought treatment (R. 216). Dr. Erby stated the timing of Ms. Pickett's request for treatment might be related to her "unsuccessful quest to obtain disability" (Id.). Ms. Pickett exhibited good grooming and hygiene, and a serious, business-like affect (Id.). While her mood was depressive and anxious, there was no overt anxiety behavior and Ms. Pickett was not suicidal (Id.). Dr. Erby diagnosed major depression, anxiety disorder, not otherwise specified, and noted a need to rule out malingering (R. 217). He assigned Ms. Pickett a Global Assessment of Functioning ("GAF") score of 57 (Id.).*fn5 He started her on a prescription for Celexa for depression, and Remeron as a sleep aid (Id.).

  At her next therapy session with Ms. Weaver, on February 15, 2002, Ms. Pickett reported a positive change in her depression and sleep within two days of beginning her medication (R. 215). Ms. Weaver noted that Ms. Pickett was laughing and smiling (Id.). On March 11, 2002, Dr. Erby substituted Zoloft for Celexa, due to side effects Ms. Pickett reported (R. 214). It would appear that Ms. Pickett continued her therapy until May of 2002, when she "dropped out" (R. 209). She was officially discharged as an outpatient on July 16, 2002, at which time Ms. Weaver indicated that the initial goal of decreasing depression and anxiety was only "partially met" (R. 207-08).

  On February 13, 2002, Ms. Pickett returned to Dr. Marvel with complaints of tenderness in the skin of her left hand and pain in both hands (R. 180). Although Ms. Pickett claimed that the carpal tunnel had returned, Dr. Marvel was skeptical, especially since she had not been working or overusing her hands (Id.). There was good functioning in the thenar ...


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