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Davis v. Berryhill

United States District Court, S.D. Georgia, Statesboro Division

February 6, 2018

VALERI DAVIS, o/b/o K.A.W., a Minor, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

         Plaintiff seeks judicial review of the Social Security Administration's denial of an application for Supplemental Security Income (SSI) filed on behalf of K.A.W., a minor. Tr. 162-71.

         I. GOVERNING STANDARDS

         In social security cases, courts

. . . review the Commissioner's decision for substantial evidence. Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (quotation omitted). . . . “We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the Commissioner.” Winschel, 631 F.3d at 1178 (quotation and brackets omitted). “If the Commissioner's decision is supported by substantial evidence, this Court must affirm, even if the proof preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).

Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).

         A three-step sequential process is used to determine whether a child is disabled. Parks ex rel. D.P. v. Comm'r of Soc. Sec., 783 F.3d 847, 850 (11th Cir. 2005); see 20 C.F.R. § 416.924. At the first step, the Commissioner must determine whether the claimant is engaging in substantial gainful activity; if so, the claim is denied. Id. § 416.924(b). At the second step, the Commissioner must determine whether the claimant has a severe impairment or combination of impairments; if the claimant does not have any severe impairments, the claim is denied. Id. § 416.924(c). At the third and final step, the Commissioner must determine whether the child's impairments meet or equal a “listed” impairment. Id. § 416.924(d). If the claimant does not have an impairment that meets, medically equals, or functionally equals the Listings, he will be found not disabled. Id. § 416.924(d)(2). The burden of proving disability lies with the claimant. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).

         II. ANALYSIS

         K.A.W., who alleges disability since October 30, 2005, was 10 years old when the ALJ denied SSI benefits in a written decision. Tr. 22; 162-71 (protective filing for SSI benefits on October 4, 2013). The ALJ found that K.A.W.'s asthma with allergic rhinitis and Erb's Palsy with right-sided brachial plexopathy constituted severe impairments but did not meet or functionally equal a Listing. Tr. 22-31. Hence, the ALJ found, she is not disabled. Tr. 31. Plaintiff contends the ALJ erred by finding K.A.W.'s asthma did not meet or equal Listing 103.03B (asthma) and by failing to order a consultative examination. Doc. 11.

         Listing 103.03B requires

B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks[.]

20 C.F.R. pt. 404, subpt. P, app. 1, § 103.03(B). And “attacks” of asthma are defined as

[P]rolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting. Hospital admissions are defined as inpatient hospitalizations for longer than 24 hours.

Id.

         During the hearing, plaintiff's counsel argued that K.A.W. met the Listing, and the ALJ kept the record open for counsel to submit further briefing so showing. Tr. 40-43. In that briefing, he listed thirteen “exacerbations” for consideration as qualifying “attacks” under the Listing. Tr. 276.[1] They, and a brief description of those records, are as follows:

• Sept. 27, 2015 - Dr. Geoffry Conner (tr. 526)
o K.A.W. was seen for a routine immunotherapy (allergy) injection. No. notes on her condition or any ...

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