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Davidson v. Berryhill

United States District Court, D. Oregon

April 9, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          BECKERMAN, Magistrate Judge.

         Billie Jean Davidson (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The sole issue presented on appeal is whether the Administrative Law Judge (“ALJ”) erred in concluding, at step three of the sequential process, that Plaintiff did not meet Listing 12.05C, the listing for intellectual disability. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the Commissioner's decision and remands for an award of benefits.


         Plaintiff was born in December 1971, making her forty-one years old on March 27, 2013, the day she filed her protective application.[1] (Tr. 21, 59, 73.) Plaintiff has a ninth grade education and past relevant work as a companion/housecleaner assistant. (Tr. 21, 173.) In her application, Plaintiff alleged disability due to back and neck issues, attention deficit disorder, depression, anxiety, posttraumatic stress disorder (“PTSD”), chronic pain, and a learning disability. (Tr. 59, 73, 172.)

         On March 1, 2013, Plaintiff was referred to Margaret Mahlik (“Mahlik”), a licensed clinical social worker, for a mental health assessment. Plaintiff reported that she dropped out of high school “due to being a teen mom at age [sixteen], ” she has not received her General Equivalency Diploma (“GED”), she has three children, including two with “special needs, ” she was in special education “all through school, ” she has “friends and [a] church group, ” she is a rape victim, and she feels “conflicted and depressed, including sad, due to [her] son being convicted of a rape.” (Tr. 249-50.) Mahlik's primary diagnoses were major depressive disorder and PTSD, and she assigned Plaintiff a Global Assessment of Functioning score of sixty.[2]

         On March 8, 2013, Plaintiff established care at Western Psychological and Counseling Services. Dr. Joni Moon's (“Dr. Moon”) initial diagnoses were PTSD and “major depressive disorder, single episode, moderate, ” and she assigned Plaintiff a current GAF score of fifty-five. (Tr. 335.) Dr. Moon also noted that Plaintiff reported that she lives with her boyfriend of sixteen years, her twenty-four-year-old son, and her sixty-five-year-old “roommate whom she takes care of.” (Tr. 336; see also Tr. 275, noting that Plaintiff appeared for an examination and reported that she has “boarded” a sixty-seven-year-old “mentally disabled man for many years who is on SSI himself, ” Tr. 47, indicating that Plaintiff has “known [the man] for years and he has no family, ” so Plaintiff reminds him to bathe, to wear clean clothes, and to put his laundry in the washing machine).

         On August 2, 2013, Plaintiff was referred to Dr. Ronald Duvall (“Dr. Duvall”) for a psychological examination. (Tr. 273-77.) Based on his clinical interview, review of “[s]cant medical and mental health records, ” and mental status examination, Dr. Duvall's primary diagnoses were PTSD that was chronic and mild to moderate, and nicotine dependence. (Tr. 273, 276.) Dr. Duvall ruled out diagnoses of attention deficit hyperactivity disorder (“ADHD”), a caffeine-related disorder that was not otherwise specified, and a borderline intellectual quotient (“IQ”). Dr. Duvall observed that Plaintiff's “brief” mental status examination “suggested problems in concentration, working memory, arithmetic ability, delayed auditory memory, commonsense judgment, and fund of information, ” that Plaintiff “did not qualify” for a diagnosis of a depressive disorder, that the “daily effects” of Plaintiff's PTSD/anxiety “would be unlikely to represent a significant barrier to her working, ” that Plaintiff's ability to “cope with stress and anxiety is likely to improve with cessation of both smoking [two packs per day] and cessation of caffeinated coffee over-consumption, ” that an ADHD diagnosis was ruled out, but it was “possible that some of [Plaintiff's] deficits are also based in Borderline Intellectual Functioning, ” and that the administration of the Wechsler Adult Intelligence Scale-Fourth Edition (“WAIS-IV”) “might provide more definitive data” and “for differential diagnosis.” (Tr. 276-77.)

         On August 7, 2013, Dr. Arthur Lewy (“Dr. Lewy”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 63-64.) Based on a review of the medical record, Dr. Lewy concluded that Plaintiff's mental impairments failed to satisfy listings 12.02 (organic mental disorders), 12.04 (affective disorders), and 12.06 (anxiety-related disorder).

         Also on August 7, 2013, Dr. Lewy completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of fifteen categories of mental ability. (Tr. 66-68.) Dr. Lewy rated Plaintiff to be “not significantly limited” in seven categories and “moderately limited” in eight categories. (Tr. 66-68.) Dr. Lewy added that Plaintiff “would benefit from vocational guidance, ” but she is capable of “understanding and carrying out simple tasks, ” “sustaining simple and routine 1/2 step tasks, ” and “sustaining routine changes in the workplace.” (Tr. 66-68.)

         On January 29, 2014, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a psychiatric review technique assessment, agreeing with Dr. Lewy's finding that Plaintiff's mental impairments fail to satisfy listings 12.02, 12.04, and 12.06. (Tr. 79-80.) That same day, January 29, 2014, Dr. Boyd completed a mental residual functional capacity assessment, in which he agreed with Dr. Lewy's findings in all relevant respects. (Tr. 82-84.)

         In late January and early February 2014, Plaintiff participated in counseling sessions with Ed Rosanksi (“Rosanksi”), a psychiatric mental health nurse practitioner at Western Psychological and Counseling services. Rosanski noted that Plaintiff had been diagnosed with depression and ADHD, and he assigned Plaintiff GAF scores of seventy-six and seventy-eight.[3](Tr. 505-06.)

         In a progress note dated September 9, 2014, Rosanki noted that Plaintiff's ability to concentrate was improving on Wellbutrin and Adderall, Plaintiff's thought process was goal directed, Plaintiff's thought content was normal, Plaintiff's insight was good, and Plaintiff's judgment was appropriate. (Tr. 499.) Rosanki also assigned Plaintiff a current GAF score of seventy.

         On November 3, 2015, Plaintiff was referred to Dr. Jane Starbird (“Dr. Starbird”) for an intellectual evaluation. (Tr. 640-45.) Dr. Starbird administered the WAIS-IV, and Plaintiff received a full scale IQ score of sixty-nine, a verbal comprehension index score of seventy-two, a perceptual reasoning index score of seventy-three, a working memory index score of eighty, and a processing speed index score of seventy-one. Dr. Starbird observed that Plaintiff's “effort during testing was thought to be good, ” that Plaintiff “was thought to be credible in describing anxiety but would not meet the criteria for panic disorder, ” that “at times [Plaintiff's] perceptions of her medical problems were inaccurate or over-stated, ” that Plaintiff's symptoms did “not suggest that she would meet the criteria for major depressive disorder, ” that Plaintiff “did not describe symptoms” of PTSD, that “[n]o learning disability is assigned, ” and that Plaintiff's self-reported “performance in day to day tasks and household chores is thought to be commensurate with borderline range of intellectual function.” (Tr. 643-45.) Dr. Starbird also assigned Plaintiff the following diagnoses: generalized anxiety disorder, rule out a somatization disorder, alcohol dependence, and attention deficit disorder that is “well-managed with medications” (Axis I); borderline intellectual function (Axis II); and multiple medical concerns (Axis III). (Tr. 645.)

         On November 11, 2015, Dr. Starbird completed a medical source statement, in which she rated Plaintiff's limitations in each of ten categories of work-related activities. (Tr. 646-48.) Dr. Starbird rated Plaintiff to be extremely impaired (i.e., no useful ability to function in this area) in her ability to make judgments on complex work-related decisions, and markedly impaired (i.e., substantial loss in the ability to function effectively) in her ability to carry out complex instructions and to respond appropriately to usual work situations and to changes in a routine work setting. Dr. Starbird also rated Plaintiff to be moderately impaired (i.e., more than slight limitations, but the individual is still able to function satisfactorily) in her ability to understand and remember complex instructions, mildly impaired (i.e., a slight limitation but the individual can generally function well) in her ability to make judgments on simple work-related decisions, interact appropriately with supervisors, and interact appropriately with co-workers, and “[a]bsent or minimal limitations” ...

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