Martin v. Astrue (CONSENT)
MEMORANDUM OPINION: The Commissioner's decision is due to be AFFIRMED. A separate judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 8/6/2013. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
DONNA MARTIN o/b/o HKB,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL ACTION NO. 1:11CV651-SRW
Donna Martin o/b/o HKB1 brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying her child’s application for Supplemental Security Income under
the Social Security Act. Upon review of the record and briefs submitted by the parties, the
court concludes that the decision of the Commissioner is due to be affirmed.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the ALJ’s factual findings. Davis v.
Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143, 1145
The court refers to HKB as the “plaintiff” in this recommendation.
(11th Cir. 1991). “Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
Factual findings that are supported by substantial evidence must be upheld by the court. See
Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)(“Even if the evidence
preponderates against the [Commissioner’s] factual findings, we must affirm if the decision
reached is supported by substantial evidence.”). The ALJ’s legal conclusions, however, are
reviewed de novo because no presumption of validity attaches to the ALJ’s determination of
the proper legal standards to be applied. Davis, 985 F.2d at 531. If the court finds an error
in the ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient
reasoning for determining that the proper legal analysis has been conducted, the ALJ’s
decision must be reversed. Cornelius, 936 F.2d at 1145-46.
“Federal regulations set forth the process by which the SSA determines if a child is
disabled and thereby eligible for disability benefits.” Shinn ex rel. Shinn v. Commissioner
of Social Sec., 391 F.3d 1276, 1278 (11th Cir. 2004) (citing 42 U.S.C. § 1382c(a)(3)(C)(I)
and 20 C.F.R. § 416.906). “The process begins with the ALJ determining whether the child
is ‘doing substantial gainful activity,’ in which case she is considered ‘not disabled’ and is
ineligible for benefits.” Id. (citing 20 C.F.R. §§ 416.924(a), (b)). “The next step is for the
ALJ to consider the child’s ‘physical or mental impairment(s)’ to determine if she has ‘an
impairment or combination of impairments that is severe.’” Id. (citing 42 U.S.C.
§§ 416.924(a), (c)). “For an applicant with a severe impairment, the ALJ next assesses
whether the impairment ‘causes marked and severe functional limitations’ for the child.”
Shinn, 391 F.3d at 1278 (citing 20 C.F.R. §§ 416.911(b), 416.924(d).) This determination
is made according to objective criteria set forth in the Code of Federal Regulations (C.F.R.).
As the Eleventh Circuit has explained,
[t]he C.F.R. contains a Listing of Impairments [“the Listings”, found at 20
C.F.R. § 404 app.] specifying almost every sort of medical problem
(“impairment”) from which a person can suffer, sorted into general categories.
See id. § 416.925(a). For each impairment, the Listings discuss various
limitations on a person’s abilities that impairment may impose. Limitations
appearing in these listings are considered “marked and severe.” Id. (“The
Listing of Impairments describes ... impairments for a child that cause[ ]
marked and severe functional limitations.”).
A child’s impairment is recognized as causing “marked and severe
functional limitations” if those limitations “meet[ ], medically equal[ ], or
functionally equal[ ] the [L]istings.” Id. § 416.911(b)(1); see also §§ 416.902,
416.924(a). A child’s limitations “meet” the limitations in the Listings if the
child actually suffers from the limitations specified in the Listings for that
child’s severe impairment. A child’s limitations “medically equal” the
limitations in the Listings if the child’s limitations “are at least of equal
medical significance to those of a listed impairment.” Id. § 416.926(a)(2).
Id. at 1278-79. “Finally, even if the limitations resulting from a child’s particular
impairment[s] are not comparable to those specified in the Listings, the ALJ can still
conclude that those limitations are ‘functionally equivalent’ to those in the Listings. In
making this determination, the ALJ assesses the degree to which the child’s limitations
interfere with the child’s normal life activities. The C.F.R. specifies six major domains of
(i) Acquiring and using information;
(ii) Attending and completing tasks;
(iii) Interacting and relating with others;
(iv) Moving about and manipulating objects;
(v) Caring for [one]self; and
(vi) Health and physical well-being.”
Shinn, 391 F.3d at 1279 (citing 20 C.F.R. § 416.926a(b)(1)). “The C.F.R. contains various
‘benchmarks’ that children should have achieved by certain ages in each of these life
domains.” Id. (citing 20 C.F.R. §§ 416.926a(g)-(l)). “A child’s impairment is ‘of listing-level
severity,’ and so ‘functionally equals the listings,’ if as a result of the limitations stemming
from that impairment the child has ‘marked’ limitations in two of the domains [above], or
an ‘extreme’ limitation in one domain.”
Id. (citing 20 C.F.R. § 416.926a(d) and
The ALJ’s Decision
“ A ‘marked’ limitation is defined as a limitation that ‘interferes seriously with [the] ability
to independently initiate, sustain, or complete activities,’ and is ‘more than moderate.’” Henry v.
Barnhart, 156 Fed. Appx. 171, 174 (11th Cir. 2005)(citing 20 C.F.R § 416.926a(e)(2)(i)). “An
‘extreme’ limitation is reserved for the ‘worst limitations’ and is defined as a limitation that
‘interferes very seriously with [the] ability to independently initiate, sustain, or complete activities,’
but ‘does not necessarily mean a total lack or loss of ability to function.’” Id. (citing 20 C.F.R. §
In a decision issued on September 20, 2010, the ALJ found that the plaintiff – an older
infant when the application was filed and a preschooler at the time of the ALJ’s decision –
suffers from the severe impairment of asthma, but that she does not have an impairment or
combination of impairments that meets, medically equals, or functionally equals a listed
impairment. The ALJ determined that the plaintiff has “less than marked” limitations in the
domain of “Health and Physical Well-Being” and no limitation in the remaining domains.
The ALJ concluded, accordingly, that the plaintiff has not been disabled since October 20,
2008, the date her application was filed. (R. 19-30). The Appeals Council denied plaintiff’s
request for review of the ALJ’s decision (R. 1-6) and plaintiff commenced the present action
thereafter (Doc. # 1).
Plaintiff argues that the Commissioner’s decision is not supported by substantial
evidence and is due to be reversed because the ALJ erred in failing to find that her condition
meets the listing for asthma, specifically, subparagraphs B and C(2) of Listing 103.03.
(Plaintiff’s brief, Doc. # 12)(citing 20 C.F.R. Subpart P, App. 1, §§ 103.03(B) and
103.03(C)(2)).3 “‘For a claimant to show that his impairment matches a listing, it must meet
Plaintiff’s substantive argument is directed to explaining how the evidence demonstrates
that she “meets” the requirements of the listings. (See Doc. # 12, pp. 3-7)(citing the evidence that
she contends demonstrates that she experienced six attacks of the severity required by Listing
103.03(B) and pp. 7-12 (setting forth the evidence that she contends demonstrates that she had a
sufficient frequency of and length of steroid treatment and the absence of extended symptom-free
periods required by Listing 103.03(C)(2)). On a couple of instances she adds the words “and equals”
to her argument. (See Doc. # 12, p. 5 (“The ALJ indicated that H.K.B. did not meet this listing
because she ‘has not required a physician intervention as frequently as described in the listing.’
all of the specified medical criteria. An impairment that manifests only some of those criteria,
no matter how severely, does not qualify.” Arrington v. Social Sec. Admin., 358 Fed. Appx.
89, 93 (11th Cir. 2009)(quoting Sullivan v. Zebley, 493 U.S. 521, 530 (1990)(emphasis in
Zebley). The asthma listing requires, in relevant part:
B. Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring
physician intervention, occurring 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;
C. Persistent low-grade wheezing between acute attacks or absence of
extended symptom-free periods requiring daytime and nocturnal use of
sympathomimetic bronchodilators with ...
* * * * *
(R. 22). The ALJ is mistaken; H.K.B. meets and equals this listing.”)(emphasis added); p. 7 (“As
indicated above, the Listing requires six attacks with physician intervention in a one year period of
time. ... H.K.B. had six attacks in 2008 and therefore meets and equals this listing.”)(emphasis
added); p. 12 (concluding, after explaining how the evidence shows that she “meets” the listing
requirements for corticosteroid treatment and absence of symptom-free periods, that “H.K.B. meets
or equals listing 103.03C”)(emphasis added)). Outside of the mere inclusion of these two-word
phrases, plaintiff presents no argument that her condition either medically equals and/or functionally
equals the listing and she cites no medical expert opinion so concluding. She seeks an award of
benefits or, in the alternative, a sentence four remand including instructions to “properly evaluate
H.K.B.’s asthma as a listed impairment[.]” (Id.)(emphasis added). At the hearing, plaintiff’s counsel
argued only that she “meets” the asthma listing. (R. 39-40). She alleged no functional limitations
in her child function report. (Exhibit 2E). She further seeks an instruction, in the event of remand,
that the Commissioner “accord proper weight to the treating physicians’ medical opinions[.]” (Id.).
The body of her brief, however, includes no argument that the ALJ did not accord the weight due
to any particular medical opinion of any treating physician. Plaintiff’s brief cannot fairly be read to
raise issues of medical or functional equivalence or error in the weight assigned to a treating doctor’s
opinion. The court understands plaintiff’s brief to raise only the issue of whether she “meets” Listing
2. Short course of corticosteroids that average more than 5 days
per month for at least 3 months during a 12-month period.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 103.03. The listings define “Attacks of asthma” as
“prolonged 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” and must be
demonstrated by “medical evidence ... includ[ing] information documenting adherence to a
prescribed regimen of treatment as well as a description of physical signs.” Id., § 3.00(C).
The ALJ concluded that plaintiff’s impairment does not meet the criteria of subparagraph B
because she “has not required a physician’s intervention as frequently as described in the
listing[.]” (R. 22). She further concluded that plaintiff “has not suffered the persistent
symptoms described in subsection C[.]” (Id.).4
As ordered by the court, plaintiff filed an evidentiary summary on March 28, 2013. (Doc.
## 16, 17). While the summary is useful, plaintiff omits relevant findings that are less favorable to
her litigation position. For example, her entry for a November 1, 2007 office visit lists the doctor’s
“Relevant Findings,” upon examination of plaintiff’s chest, of “no increased work of breathing” and
“Moderate rhonchi a[re] noted in RUL and LUL.” (Doc. # 17-1, p. 8). The doctor’s note reads,
“There is no increased work of breathing. Breath sounds are normal. Aeration is good. There is
no wheezing noted. There are no rales noted. Moderate ronchi [sic] are noted in the RUL and in
the LUL. There are no crackles noted.” (R. 216). As to another instance of treatment, plaintiff
argues in her brief that she “was again treated for a bronchospasm on April 17, 2008.” (Doc. # 12,
p. 6)(citing R. 198, 225). However, the only “Relevant Finding” plaintiff identifies in her
evidentiary summary for that date is, “Nose is congested, watering with significant mucous and
drainage[.]” (Doc. # 17-1, p. 15). The treatment record indicates that plaintiff’s mother reported that
she had given plaintiff several breathing treatments the previous night – her first night home after
her hospitalization for bronchospasm – “because she seemed to be coughing and wheezing.” (R.
225). Plaintiff’s doctor noted, “Physical examination today reveals patient in no distress. TM’s are
clear. Nose is congested watering with significant mucous and drainage. Throat is clear. Neck is
supple. Chest has excellent air movement in all areas and easy respiration with no increased work
of breathing. No wheezes are heard at this time. The patient has normal I to E ratios.” (R. 225).
Plaintiff identifies the episodes in 2008 that she claims are “attacks” meeting the
requirements of subparagraph B – January 14, January 16, April 14-16 (hospitalization); and
December 3-5 (hospitalization). (Doc. # 12, p. 5 (citing R. 164, 220, 221, 251, 255); id. at
p. 7 (“H.K.B. had six attacks with physician intervention in 2008. Specifically, she had
attacks on January 14, 2008 and January 16, 2008. Then, she had overnight hospitalizations
to treat her attacks on April 14-16, 2008, and December 3-5, 2008.”)(citing R. 164, 220, 221,
251, 255)). The Commissioner agrees that the two hospitalizations each count as two attacks
under Listing 103.03B, but contends that the episodes on January 14, 2008 and January 16,
2008 did not amount to “attacks as defined in Listing 3.00C.” (Doc. # 14, p. 8). Because
subparagraph B requires six attacks within a twelve month period, plaintiff’s argument fails
if either of these January 2008 instances do not satisfy the listing’s definition of “attack.”5
There are other similarly deficient entries. While the appendices required by this court’s order need
not list every clinical observation included in the medical records, the court expects that they will
reflect a diligent effort by counsel to present a balanced summary of the evidence.
Plaintiff does not claim expressly that she suffered a qualifying asthma attack on March
21, 2008. (See Doc. # 12, pp. 5, 7)(listing attacks requiring physician intervention). However, she
argues that “[s]he had wheezing on exam and a nebulizer was used in Dr. Williams’ office” on that
date. (Id., p. 6 (citing R. 223)(emphasis added)). This is not so, at least not to the extent that
plaintiff implies that she was treated by nebulizer in Dr. Williams’ office. The treatment record for
March 21, 2008 does not evidence administration of medication to plaintiff by nebulizer during that
office visit. Instead, the doctor “[d]emonstrated/evaluated patient’s use of a nebulizer” on that date,
as plaintiff indicates in her later-filed evidentiary summary. (Doc. # 17-1, p. 13; see also R. 223
(same) and R. 224 (under “Procedures,” listing “Office Visit - Expanded” and “Demo Inhalation
Device”). Plaintiff makes other misleading statements in her brief. For instance, she argues that
“[o]n April 23, 2008, H.K.B. again presented for treatment of a bronchospasm.” (Doc. # 12, p.
6)(emphasis added). Her treatment record for that date does, indeed, list a diagnosis of
bronchospasm. (R. 225-26). However, while plaintiff’s mother and the doctor “[d]iscussed
In the early morning hours of January 14, 2008, plaintiff’s mother took her to the
Flowers Hospital emergency room complaining of fever and vomiting. Plaintiff’s
temperature was 102.8E, but her O2 saturation was “100%.” (R. 176). The triage nurse noted
“nml breath sounds” and “no respiratory distress” on physical examination. (Id.). He circled
“none” under “MEDS” (id.) and, at 3:48 a.m., he gave her an oral dose of Motrin (R. 177).
The ER physician also checked “None” in the block for medications (R. 178), indicated “no
resp. distress” and “breath sounds nml” upon physical examination (R. 180), and recorded
that plaintiff’s chest x-ray was normal (id.; see also R. 179 (x-ray report)). The physician
assessed fever and upper respiratory infection and discharged plaintiff, giving her a
prescription for Amoxil. (R. 177, 180). Later that day, plaintiff’s mother took her to her
pediatrician’s office. She told the doctor about the earlier ER visit and diagnosis, and
complained that plaintiff was now wheezing and had a worsening cough followed by
vomiting. The doctor noted, “On no Medications.” (R. 220). On physical examination, the
doctor noted “mildly increased work of breathing” and diffuse moderate wheezes, but no
rales or rhonchi, and diagnosed “Acute Bronchiolitis[.]” (R. 220). Plaintiff received
Xopenex by nebulizer at the physician’s office and a prescription for a home nebulizer
Bronchospasm” (see R. 225, under “History”), the sole abnormal finding on physical examination
was “[m]ild nasal drainage” (id., “Physical Exam”). Plaintiff’s primary diagnosis for that visit is “V
202 Well Child Care[,]” as plaintiff acknowledges in her evidentiary summary. (See R. 226; Doc.
# 17-1, p. 15). Plaintiff further argues that, “[o]n October 15, 2008, H.K.B. was also treated for
bronchospasm.” (Doc. # 12, p. 6). This, too, was a “well child” visit. (R. 233; see Doc. # 17-1,
p. 18). In presenting arguments to the court, the better approach is to do so with the expectation that
the court will review the evidence.
machine and Albuterol, to be used every two to four hours as needed for wheezing. (Id.; see
also R. 162-63).
The Commissioner contends that this episode is not an “attack” for purposes of the
listing because plaintiff was “not on a prescribed regimen of treatment as required under
Listing 3.00(C)” at the time of the January 14, 2008 episode, and had only a “simple
nebulizer treatment” rather than the intensive treatment required by the listing. (Doc. # 14,
pp. 8-9). As the Commissioner argues, the treatment notes for that day indicate that plaintiff
was on no medications at the time. (R. 176, 178, 220). Thus, even assuming that the inoffice nebulizer treatment is “prolonged inhalational bronchodilator therapy” as required by
§ 3.00(C), this episode does not qualify as an “attack” for purposes of Listing 103.03(B).
(See § 103.03(B)(requiring “[a]ttacks (as defined in 3.00C), in spite of prescribed treatment
and requiring physician intervention”)(emphasis added); § 3.00(C)(requiring medical
§ 103.03(A)(“[T]he asthma listing specifically includes a requirement for continuing signs
and symptoms despite a regimen of prescribed treatment.”).
Plaintiff contends that she also had a qualifying “attack” on January 16, 2008. On that
day, plaintiff’s mother took her back to the pediatrician’s office, complaining that she had
continued to vomit and wheeze. (R. 221). The physician wrote:
On exam today, she is alert and vigorous and appears to be in no significant
distress. She is playful and happy. Her pharynx is clear. Mucous membranes
are moist. Both TM’s are normal. There is a serous discharge in her nostrils.
Neck is supple. Chest exam reveals coarse expiratory wheezes bilaterally. I
hear no rales. Air exchange is adequate. There are no retractions and only
minimal increased work of breathing. Abdomen is soft. Bowel sounds are
normally active. Again, she is alert and vigorous. 02 saturation today was
(Id.). The physician again diagnosed acute bronchiolitis, gave plaintiff a Decadron shot “to
decrease airway swelling,” prescribed a three-day course of Orapred, and sent her for a chest
x-ray. The x-ray showed “mild bilateral peribronchial cuffing, probably a mild viral
pneumonitis” and was otherwise negative. (Id.; see also R. 172). The Commissioner points
out that the treatment record does not evidence any “intensive treatment in a hospital,
emergency room or equivalent setting.” (Doc. # 14, p. 9; see also § 3.00(C)). Plaintiff’s
contention that the treatment record for this visit evidences an “attack” rests, apparently, on
her previous misunderstanding that the “pulse ox/O2 SAT” annotated in the treatment record
is a “breathing treatment.” (Doc. # 12, p. 6). In a footnote within her later-filed evidentiary
summary, however, plaintiff’s counsel apologizes for her error, noting that “[p]ulse ox is not
a breathing treatment, but a measurement of the blood oxygen and hemoglobin levels” (Doc.
# 17-1, p. 10 n. 3); however, she does not withdraw her allegation of error as to § 103.03(B).
The evidence, as the Commissioner contends, does not establish that plaintiff suffered a
qualifying “attack” on January 16, 2008.
Of the episodes plaintiff identifies as qualifying “attacks,” only the two
hospitalizations count for purposes of § 103.03(B), for a total of four “attacks” in 2008.
Plaintiff does not contend that she suffered a sufficient number of qualifying attacks in any
other twelve month period. Thus, the ALJ’s conclusion that plaintiff’s condition does not
meet the requirements of § 103.03(B) is supported by substantial evidence.
As noted above, subsection C(2) of the asthma listing requires evidence of:
(1) “[p]ersistent low-grade wheezing between acute attacks or absence of extended symptomfree periods requiring daytime and nocturnal use of sympathomimetic bronchodilators; and
(2) treatment with “short course[s] of corticosteroids that average more than 5 days per
month for at least 3 months during a 12-month period.” 20 C.F.R. Pt. 404, Subpt. P, App. 1,
§ 103.03(C)(2). The ALJ concluded that plaintiff did not meet the requirements of
subparagraph C because she “has not suffered the persistent symptoms described in
subsection C.” (R. 22). Plaintiff contends that she meets this listing because the record
demonstrates that she has been treated with short courses of steroids with the required
frequency, and because her “history and medical records provide evidence documenting the
absence of extended symptom-free periods requiring daytime and nocturnal use of
sympathomimetic bronchodilators.” (Doc. # 12, p. 8).6 The Commissioner maintains that
substantial evidence of record supports a reasonable conclusion that plaintiff experienced
extended symptom-free periods as described in the listing and, therefore, that the
Commissioner’s decision is due to be affirmed.
(Doc. # 14, pp. 10-11).
Commissioner argues, the court must affirm if the ALJ’s decision is supported by substantial
evidence – i.e. “such relevant evidence as a reasonable person would accept as adequate to
Plaintiff points to her use of short courses of the corticosteroid Prednisolone and the
sympathomimetic bronchodilator Albuterol. (Doc. # 8, p. 8).
support a conclusion” – “even if the evidence preponderates against the Commissioner’s
findings[.]” Crawford v. Commissioner Of Social Security, 363 F.3d 1155, 1158-59 (11th
Cir. 2004)(citations and internal quotation marks omitted).
The treatment of plaintiff’s asthma with the short courses of steroids is not sufficient,
standing alone, to meet the listing. Instead, plaintiff must satisfy all of the listing’s
requirements. Arrington, 358 Fed. Appx. at 93. The Commissioner does not dispute
plaintiff’s treatment with short courses of steroids of the frequency and duration required by
the listing; instead, both the ALJ’s stated rationale and the Commissioner’s argument before
this court focus on whether plaintiff suffered the persistent symptoms required by the listing.
(Id.; R. 22). The ALJ’s conclusion that she did not is supported by substantial evidence, as
the record permits a reasonable conclusion that there have been extended periods during
which plaintiff was free of symptoms requiring the daytime and nocturnal use of
Plaintiff’s alleged onset date is January 14, 2008; plaintiff was first prescribed
Albuterol on that date. (R. 19, 39-40, 220; see also Doc. # 17-1, plaintiff’s summary of the
evidence). Plaintiff cites her pharmacy records to demonstrate her use of short courses of
corticosteroids (Doc. # 12, p. 8); those same records show that the pharmacies dispensed
Albuterol as follows:
1/15/08 – a 10-day supply dispensed, with no refills prescribed (R. 154, 163, 220);
2/21/08 – an 8-day supply dispensed, with no refills prescribed (R. 151, 223, 258);
12/2/08 – a 10-day supply dispensed, with no refills prescribed (R. 148, 250, 258);
1/4/10 – a 6-day supply dispensed, with no refills prescribed (R. 141, 315);
2/15/10 – a 6-day supply dispensed, with 5 refills prescribed (R. 141, 339);
7/12/10 – a 6-day supply dispensed (R. 140).
(See Exhibits 9E, 10E, 11E, 12E).7 Plaintiff also received Albuterol treatments periodically
throughout her hospitalization in April 2008 and December 2008, but was discharged with
instructions to continue its use on a “PRN basis.” (R. 164, 255). Although there are periods
of time during which plaintiff used Albuterol frequently, her medical record also reflects
extended periods during which there is no mention of the use of Albuterol in treatment notes.
For instance, in the seven months between mid-April 2008 and mid-November 2008,
plaintiff’s medical record includes no mention of Albuterol treatments, despite the fact that
plaintiff was evaluated at her pediatrician’s office or the hospital ER on seventeen occasions
during that period. (See R. 168-71, 173-75, 225-34 (treatment notes for evaluations from
4/23/08 through 11/11/08); see also Doc. # 17-1, plaintiff’s summary, pp. 15-18). Similarly,
although plaintiff’s treatment notes for the period from December 2, 2008 through April 8,
2009 reflect frequent use of Albuterol (or “rescue meds”)(R. 244-56, 300-04), there is no
mention of such use thereafter until August 5, 2009 (R. 287-94, 305-07), i.e., for nearly four
months. On September 16, 2009, plaintiff’s mother reported that she was using Albuterol
Plaintiff’s physicians often prescribed at-home use of Albuterol on as as-needed
basis (See R. 164, 220, 223, 250, 270, 315). Thus, the fact that the pharmacy dispensed a
“10-day” supply does not mean that plaintiff used that medication on only ten days.
every four hours during the day but used only Singulair at night, and there is no mention of
Albuterol in treatment notes for plaintiff’s three office visits in October 2009. (R. 309-12).
After a period of exacerbated symptoms requiring increased use of Albuterol between early
November 2009 and the end of March of 2010, there is no mention of use of Albuterol again
for seven months, until plaintiff’s mother reported another exacerbation of her asthma in an
office visit on October 27, 2010. (R. 312-16, 337-43, 356-58).
At the September 10, 2010 administrative hearing, plaintiff’s mother testified that
plaintiff “takes her Albuterol treatments as needed[;]” that plaintiff’s problems are worse in
the fall, winter and spring; and that “during the summer she is fairly okay, but I still may have
to give her treatments here and there.” (R. 41-42).8 She further testified as follows:
When is the last time that you gave her a breathing treatment?
Let’s see. I had to give her one I know in June. She was playing and
I guess she had overdone it, and she started to have an attack, and I had
to give her one then and it pretty much calmed her down. But I haven’t
really hade to give her, I mean, as far as having to give them back to
back, you know, so many times a day since then, but she has had to
have one back in July. I didn’t have to give any in August, and none so
far this month.
Okay. Were you having to give back to back treatments back in April or
At the hearing before the ALJ, Plaintiff’s counsel maintained that she meets the listing.
(R. 39). However, he argued that “[i]t does appear from the record that it does seem to be somewhat
seasonal in that the worse periods of the year are the spring, the fall, and the winter. The summer
months are not so bad.” (Id.).
(R. 44). The record includes substantial evidence supporting the ALJ’s conclusion that
plaintiff does not meet the requirements of Listing 103.03(C)(2).
For the foregoing reasons, the Commissioner’s decision is due to be AFFIRMED. A
separate judgment will be entered.
DONE, this 6th day of August, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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