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Davis v. Berryhill

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

February 26, 2019

MARQUIS A. DAVIS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          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, Marquis A. Davis, on September 15, 2017. For the following reasons, the decision of the Commissioner is REMANDED.

         Background

         The plaintiff, Marquis A. Davis, filed applications for Child Disability Insurance Benefits on November 4, 2013, and Supplemental Security Income on October 25, 2013, alleging a disability onset date of July 28, 1995. (Tr. 9). The Disability Determination Bureau denied Davis' applications on February 6, 2014, and again upon reconsideration on May 7, 2014. (Tr. 9). Davis subsequently filed a timely request for a hearing on July 2, 2014. (Tr. 9). A hearing was held on May 11, 2016, before Administrative Law Judge (ALJ) Robert M. Senander, and the ALJ issued an unfavorable decision on June 8, 2016. (Tr. 9-22). Vocational Expert (VE) Lee O. Knutson and Medical Expert (ME) Michael C. Rabin, PhD testified at the hearing. (Tr. 9). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6).

         Although Davis alleged an onset date of July 28, 1995, the period of consideration before the ALJ began on the day before Davis' 18th birthday, July 27, 2013, for the Title II application and October 25, 2013, regarding the Title XVI application. (Tr. 9). To be entitled to child's insurance benefits, an individual must have a disability that began before attainment of age 22. (Tr. 9).

         At step one of the five-step sequential analysis for determining whether an individual is disabled, the ALJ found that Davis had not engaged in substantial gainful activity since July 28, 1995, the alleged onset date. (Tr. 12).

         At step two, the ALJ determined that Davis had the following severe impairments: asthma, borderline intellectual functioning, specific learning disorder (reading and math), and depression disorder NOS. (Tr. 12). The ALJ determined that Davis' physical impairments, considered singly and in combination, more than minimally limited his ability to perform basic work activities. (Tr. 13). Additionally, the ALJ found that in assessing Davis' mental impairments, he had a moderate limitation in at least one broad area of functioning. (Tr. 13). Thus, the ALJ concluded that Davis' physical and mental limitations were severe impairments. (Tr. 13).

         At step three, the ALJ concluded that Davis 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. 14). The ALJ considered Davis' impairments against the following criteria: Listing 3.03, asthma; Listing 12.04, affective disorders; and Listing 12.05, borderline intellectual functioning. (Tr. 14). The ALJ indicated that neither Davis' treating or examining physicians, nor the State agency medical consultants indicated findings that would satisfy the severity of a listed impairment. (Tr. 14).

         As for Davis' asthma, the ALJ determined that although Davis had some difficulty breathing after exertion and that he regularly used his albuterol and inhaler, he was able to manage his asthma well and did not require physician intervention. (Tr. 14). Therefore, the ALJ concluded that the criteria of Listing 3.03 was not met. (Tr. 14).

         Next, in finding that Davis did not meet Listing 12.04, 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. 14). 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. 14).

         The ALJ determined that Davis had a moderate restriction in activities of daily living, a mild restriction in social functioning, and a moderate restriction in concentration, persistence, or pace. (Tr. 14-15). However, Davis had not experienced any episodes of decompensation. (Tr. 14). Because Davis 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. 15). Additionally, the ALJ found that Davis did not satisfy the paragraph C criteria. (Tr. 15).

         Finally, the ALJ considered Davis' borderline intellectual functioning under the requirements of Listing 12.05. (Tr. 15). Intellectual disability refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e, the evidence demonstrates or supports onset of the impairment before age 22. (Tr. 15). The ALJ indicated that Davis was able to manage his own personal care and perform household chores. (Tr. 15). Additionally, prior to the relevant period Davis underwent cognitive testing and achieved a full-scale IQ score of 72. (Tr. 15). Thus, based on those findings, the ALJ concluded that Davis' borderline intellectual functioning did not meet the criteria set forth in Listing 12.05. (Tr. 15).

         After consideration of the entire record, the ALJ then assessed Davis' residual ...


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