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Sulls v. Berryhill

United States District Court, N.D. Indiana, Hammond Division

September 24, 2018

GEORGE E. SULLS, JR., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.


          Andrew P. Rodovich United States Magistrate Judge

         This matter is before the court on petition for judicial review of the decision of the Commissioner filed by the plaintiff, George E. Sulls, Jr., on May 10, 2017. For the following reasons, the decision of the Commissioner is REMANDED.


         The plaintiff, George E. Sulls, Jr., filed applications for Disability Insurance Benefits and Supplemental Security Income on July 29, 2013, alleging a disability onset date of August 20, 2010. (Tr. 52). Sulls amended his alleged disability onset date to June 1, 2013. (Tr. 52). The Disability Determination Bureau denied Sulls's applications on October 1, 2013, and again upon reconsideration on December 5, 2013. (Tr. 52). Sulls subsequently filed a timely request for a hearing on January 3, 2014. (Tr. 52). A hearing was held on July 2, 2015, before Administrative Law Judge (ALJ) Brian Saame, and the ALJ issued an unfavorable decision on August 13, 2015. (Tr. 52-67). Vocational Expert (VE) Ronald Malik and Sulls's wife, Alicia Sulls, testified at the hearing. (Tr. 52). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-4).

         Sulls met the insured status requirements of the Social Security Act through December 31, 2014. (Tr. 54). On August 13, 2015, the ALJ issued an unfavorable decision and made findings as to each of the steps in the five-step sequential analysis. (Tr. 52-67). At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Sulls had not engaged in substantial gainful activity since June 1, 2013, the amended alleged onset date. (Tr. 54).

         At step two, the ALJ determined that Sulls had the following severe impairments: diabetes mellitus with diabetic neuropathy, degenerative disc disease of the cervical and lumbar spine, pancreatitis, hypothyroidism, obesity, left ear hearing loss, knee pain, low average to borderline intellectual functioning, and adjustment disorder with anxiety and depression. (Tr. 55).

         At step three, the ALJ concluded that Sulls did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 55). The ALJ considered Sulls's physical impairments against the following criteria: Listing 1.02, major dysfunction of a joint; Listing 1.04 disorders of the spine; and Listing 2.10, hearing loss not treated with cochlear implant. (Tr. 55). Moreover, the ALJ evaluated Sulls's diabetes mellitus against the criteria in Listing 11.14, peripheral neuropathies, as well as his hyperthyroidism under Listing 9.00B.2. (Tr. 56). Pursuant to SSR 02-1p, the ALJ considered Sulls's obesity in determining whether his medically determinable impairments met or medically equaled any listing and in determining the residual function capacity. (Tr. 56). After a review of the medical record, the ALJ found that Sulls did not have a physical disability to the degree contemplated by the listings and that no medical expert opined that his physical impairments, either singly or in combination, medically equaled a listing. (Tr. 56).

         The ALJ considered Sulls's level of intellectual functioning by considering Listing 12.05. (Tr. 56). The ALJ noted that before reaching the severity sections of Listing 12.05, it was necessary for Sulls to establish that he had a significantly sub-average intellectual functioning with deficits in adaptive functioning that initially manifested in the developmental period, which was before the age of 22. (Tr. 56). The ALJ determined that there was no evidence of significant deficits in adaptive functioning prior to age 22. (Tr. 56). The ALJ noted that Sulls had received his high school diploma, passed his driver's license test, and had worked at the age 16. (Tr. 56). However, his employment was not at substantially gainful levels. (Tr. 56). Therefore, Sulls did not establish significant sub-average intellectual functioning or adaptive deficits prior to age 22. (Tr. 56). Also, the ALJ considered the severity of Sulls's adjustment disorder against Listing 12.04, affective disorder, and Listing 12.06, anxiety-related disorders. (Tr. 56). Accordingly, the ALJ determined that the severity of Sulls's mental impairments did not meet or medically equal the listings. (Tr. 57).

         In finding that Sulls did not meet the above listings, the ALJ considered the paragraph B criteria for mental impairments, which required at least two of the following:

marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration.

(Tr. 57). The ALJ defined a marked limitation as more than moderate but less than extreme and repeated episodes of decompensation, each of extended duration, as three episodes within one year or once every four months with each episode lasting at least two weeks. (Tr. 57).

         The ALJ determined that Sulls had mild restrictions in activities of daily living, mild difficulties in social functioning, and moderate difficulties in concentration, persistence, or pace. (Tr. 57). The ALJ found that Sulls had no episodes of decompensation which were of extended duration. (Tr. 57). Because Sulls did not have two marked limitations or one marked limitation and repeated episodes of decompensation, the ALJ determined that he did not satisfy the paragraph B criteria. (Tr. 57). Additionally, the ALJ found that Sulls did not satisfy the paragraph C criteria. (Tr. 57).

         After consideration of the entire record, the ALJ then assessed Sulls's residual functional capacity (RFC) as follows:

[T]he claimant has the residual functional capacity (RFC) to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant is limited to occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps, stairs, ladders, ropes, or scaffolds. He is limited to occasional overhead reaching and lifting, but can do frequent handling and fingering with the left upper extremity. He requires the option to change positions for 10 minutes once per hour, provided he is not off task more than 5 percent of the time. He is limited to occasional exposure to extreme temperatures, noise, vibration, and workplace hazards such as moving machinery and unprotected heights. Due to moderate limitations in concentration, persistence, or pace, the claimant is limited to simple, routine tasks. He is limited to jobs that require no more than occasional verbal communication. He requires a cane to walk.

(Tr. 58). The ALJ explained that in considering Sulls's symptoms he followed a two-step process. (Tr. 58). First, he determined whether there was an underlying medically determinable physical or mental impairment that was shown by a medically acceptable clinical or laboratory diagnostic technique that reasonably could be expected to produce Sulls's pain or other symptoms. (Tr. 58). Then, he evaluated the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limited Sulls's functioning. (Tr. 58).

         The ALJ acknowledged that Sulls's primary argument was that his impairments limited him to sedentary work, and that considering his vocational profile it would result in a finding of disability. (Tr. 58). The ALJ determined that after review of the evidence Sulls's medically determinable impairments reasonably could have been expected to cause the alleged symptoms; however, his statements ...

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