Holden v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/22/12. (CVA)

FILED
2012 Oct-22 PM 01:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KHADISJA HOLDEN o/b/o
K.H.,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,

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Civil Action Number
2:11-cv-3482-AKK

Defendant.
MEMORANDUM OPINION
Plaintiff Khadisja Holden (“Plaintiff”) brings this action on behalf of her
daughter, K.H. (“Claimant”), pursuant to Section 205(g) of the Social Security Act
(“the Act”), 42 U.S.C. § 405(g), seeking review of the final adverse decision of the
Commissioner of the Social Security Administration (“SSA”). This court finds
that the Administrative Law Judge’s (“ALJ”) decision - which has become the
decision of the Commissioner - is not supported by substantial evidence and, for
the reasons elaborated herein, REMANDS the decision denying benefits to the
Commissioner.

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I. Procedural History
Plaintiff protectively filed an application, on behalf of her minor child K.H.,
for child’s Supplemental Security Income (“SSI”) on November 29, 2007, alleging
a disability onset date of August 6, 2007, K.H.’s birth date, due to asthma and acid
reflux. (R. 100). After the SSA denied her application on January 30, 2008, (R.
46), Plaintiff requested a hearing before an ALJ on February 25, 2008, (R. 52), and
received one on June 10, 2009. (R. 20). The ALJ continued the hearing until
February 19, 2010 to allow Plaintiff to submit additional medical evidence. (R.
31).
The ALJ denied Plaintiff’s claims on March 3, 2010, (R. 16), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on July 25, 2011. (R. 1). Plaintiff then filed this action pursuant
to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
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and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
A claimant under the age of eighteen is considered disabled if the claimant
has a medically determinable physical or mental impairment which results in
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marked and severe functional limitations, and which is expected to result in death,
or which has lasted or is expected to last for a continuous period of not less than
12 months. 42 U.S.C. § 1382c(a)(3)(C)(I). The regulations define the statutory
standard of “marked and severe functional limitations” in terms of “listing-level
severity.” 20 C.F.R. §§ 416.902, 416.906, 416.924(a), 416.926a(a); see 20 C.F.R.
pt. 404, subpt. P, app. 1 (the listings). The Commissioner has developed a specific
sequential evaluation process for determining whether a child claimant is disabled.
20 C.F.R. § 416.924. The three-step process requires a child to show: (1) that he
is not working; (2) that he has a “severe” impairment or combination of
impairments; and (3) that his impairment or combination of impairments is of
listing-level severity, that is, the impairments meet, medically equal, or
functionally equal the severity of an impairment in the listings. 20 C.F.R. §
416.924.
If a child claimant is not working and has a severe impairment, the ALJ
must determine if the child’s impairments meet or medically equal an impairment
listed in the listings. 20 C.F.R. § 416.924(a)-(d). An impairment medically equals
a listing “if it is at least equal in severity and duration to the criteria of any listed
impairment.” If the claimant’s impairments do not meet or medically equal a listed
impairment, the ALJ must then determine if the child’s impairments are, instead,
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functionally equivalent in severity. 20 C.F.R. §§ 416.924(d), 416.926a(a). For the
child’s impairments to functionally equal a listed impairment, they must result in
“marked” limitations in two domains of functioning or an “extreme” limitation in
one domain. 20 C.F.R. § 416.926a(a). The ALJ considers the child’s functioning
in terms of six domains: (1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4) moving about and
manipulating objects; (5) caring for himself; and (6) health and physical
well-being. 20 C.F.R. § 416.926a(b)(1)(I)-(vi). If the impairments do not satisfy
the duration requirements, or do not meet, medically equal, or functionally equal
one of the listings in the Regulations, a finding of not disabled is reached and the
claim is denied. See 20 C.F.R. § 416.924(d)(2).
IV. The ALJ’s Decision
In performing the three step analysis, initially, the ALJ determined that the
Claimant has not engaged in any substantial gainful activity since the alleged
disability onset date. (R. 14). Next, the ALJ noted that the Claimant suffers from
the severe impairment of “acute bronchitis[] with a[] minimal episode of asthmatic
complications” in satisfaction of step two but found that Claimant’s otitis media
was not sufficiently severe. Id. at 14-15. Finally, at step three, the ALJ concluded
that the Claimant’s impairments did not meet or functionally equal the listing
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requirements and therefore found that the Claimant was not disabled. Id. at 16.
V. Analysis
Plaintiff contends that the ALJ committed reversible error by (1) “finding
that this child did not have a valid diagnosis of asthma, and in turn, that her
asthma was not a severe impairment under step two of the evaluation[,]” (2)
“failing to find that the claimant’s chronic otitis media (middle ear infection) was
not [sic] a severe impairment[,]” (3) “reject[ing] the opinions of the treating and
examining physicians in this case[,]” (4) “fail[ing] to properly determine whether
claimant’s asthma, and/or her combination of impairments, met or medically
equaled a Listing[,]” and (5) “fail[ing] to consider fully and fairly develop the
evidence in this case.” Doc. 9 at 2-3. Based on its review of the record, the court
finds that the ALJ’s decision is not supported by substantial evidence and is due to
be remanded.
A. Adequate Development of the Record
Plaintiff alleges, among other things, that the ALJ failed to adequately
develop the record by relying upon the opinion of a non-examining physician, Dr.
Richard Whitney, who reviewed the evidence before the medical record was
complete. Doc. 9 at 10. Generally, an ALJ has “a basic obligation to develop a
full and fair record . . . [to] enable[] the reviewing court to determine whether the
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ultimate decision on the merits is rational and supported by substantial evidence.”
O’Bier v. Commissioner of Social Sec. Admin., 338 Fed. Appx. 796, 798 (11th Cir.
2009) (internal citations and quotation marks omitted). An ALJ’s decision is
properly remanded where the ALJ fails to “provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been
conducted.” Keeton v. Dep’t of Health and Human Services, 21 F.3d 1064, 1066
(11th Cir. 1994).
Based on this court’s review of the record, the ALJ committed reversible
error when he relied on a medical opinion that was not based on the entire medical
record. Dr. Richard Whitney performed a childhood disability evaluation on the
Claimant on January 30, 2008 and determined that while the Claimant suffered
from asthma and reflux, these impairments did not meet, medically equal or
functionally equal the listings. (R. 190). To support this conclusion, Dr. Whitney
stated that there is “no real explanation[]” for Claimant’s impairments except for
five doctors visits that showed “coughing and some wheezing but no respiratory
distress.” Id. Although Dr. Whitney relied on all the evidence available to him at
the time, the ALJ’s reliance on Dr. Whitney is error nonetheless because the ALJ
allowed Plaintiff to submit additional medical evidence until February 19, 2010.
Id. at 31. By doing so, the ALJ should have ensured that Dr. Whitney reviewed
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the additional medical evidence Plaintiff submitted: “Findings of fact made by a
State agency medical . . . consultant[] . . . regarding the nature and severity of an
individual’s impairment(s) must be treated as expert opinion evidence of
nonexamining sources[,]” however, “[a]n updated medical expert opinion must be
obtained by the administrative law judge . . . before a decision of disability based
on medical equivalence can be made.” SSR 96-6P (emphasis added).
The failure by Dr. Whitney to review updated medical evidence is
significant because in the two years following his evaluation, the Claimant was
seen in emergency departments or after hours clinics numerous times, not only for
asthma symptoms but also for symptoms associated with Claimant’s other alleged
impairments. The Social Security Rulings make clear that, in such an instance, the
ALJ is obligated to obtain an updated medical opinion from a source such as Dr.
Whitney prior to making an ultimate disability determination. However, the ALJ
determined that Claimant’s impairments did not meet, medically equal, or
functionally equal a listing without obtaining an updated report from the medical
source he gave the greatest weight to in reaching his decision. Therefore, remand
is warranted here for the ALJ to properly develop the record by obtaining an
updated medical opinion.

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B. Disability Analysis Step Two - Severe Impairment
Plaintiff contends next that the ALJ erred in finding that Claimant’s asthma
and chronic otitis media were not severe impairments, and further that the ALJ
failed to properly review the medical evidence in making this determination. Doc.
9 at 2. In his opinion, the ALJ found that “an asthma diagnosis has not been
established by treating physicians or consultative examiners with any degree of
certainty” and, based on Claimant’s pediatric records, “that the [claimant] has dad
[sic] chronic bronchitis, but no longer.” (R.14). Additionally, the ALJ noted the
Claimant’s diagnoses of acid reflux and otitis media, but found neither impairment
severe. Id.
Based on a review of the medical evidence, the court finds that the ALJ’s
determination that Claimant does not suffer from asthma is not supported by
substantial evidence. The ALJ notes that “[o]n September 19, 2007, the claimant’s
pediatric records reveal she was diagnosed with bronchitis and was prescribed
medication . . . [and] [i]n November 2007, . . . was again diagnosed with
bronchitis” and her medical chart indicated exposure to second hand smoke at
home. (R. 14). However, the entire medical record indicates only a single

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assessment of bronchitis and two assessments of bronchiolitis1, each in
conjunction with asthma or an asthma exacerbation. Id. at 209, 211, 266. In
contrast, the medical record is replete with diagnoses of asthma. For example,
Children’s Hospital indicated that Claimant suffers from asthma or an asthma
exacerbation no less than eight times, see id. at 158, 219, 233, 245, 261, 302, 337,
and Claimant’s treating physicians at Midtown Pediatrics noted asthma on her
chart or physical exam findings report no less than eighteen times, see id. at 213,
211, 210, 209, 183, 181, 173, 171, 168, 318, 316, 315, 310, 309, 307, 304, 303,
340, 341. Finally, the treatment records from both Midtown Pediatrics and
Children’s Hospital consistently note that Claimant is on prescription medications
for asthma treatment, including flovent and albuterol. See id.
In addition to the ALJ’s findings being contrary to the weight of the
evidence, the ALJ erred by failing to indicate why he did not give significant
weight to the opinions of Claimant’s treating and examining physicians. Instead,
the ALJ stated only that
pursuant to 20 C.F.R. § 416.927(d)(1), I great [sic] weight to the opinion
1

Bronchiolitis is defined as “inflammation of the bronchioles, usually occurring in
children less than 2 years old and resulting from a viral infection, particularly with respiratory
syncytial virus.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 255 (Philadelphia: Saunders,
31st ed. 2007). Bronchitis, on the other hand, is defined as “inflammation of a bronchus or
bronchi; there are both acute and chronic varieties. Symptoms usually include, fever, coughing,
and expectoration. Chronic forms may involve secondary changes to lunch tissue.” Id. at 256.
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of Dr. Brookings, whose findings during the claimant’s most recent
examination were again unremarkable. In doing so, I find that her report
is consistent with the weight of the evidence in this case, including
records and reports obtained from the claimant’s treating doctors. In
addition, Dr. Brookings is a Pediatrician, and I give more weight to the
opinion of a specialist about medical issues related to his or her area of
specialty than to the opinion of a source who Is not a specialist[.]
(R. 15). Under the same rationale, Claimant’s treating and examining physicians
at Children’s Hospital and Midtown Pediatrics are likewise considered specialists
in the field of pediatrics. Additionally, unlike Dr. Brookings, the extent of their
treatment relationship with the Claimant suggests that the ALJ should have
afforded more weight to their opinions than those of another specialist who only
saw the Claimant once. See 20 C.F.R. § 404.1527. Moreover, even Dr.
Brookings’ own findings undermine the ALJ’s conclusions because Dr. Brookings
diagnosed the Claimant with “extrinsic asthma” in her report.2 (R. 324). The
court, therefore, finds that the ALJ’s rejection of Claimant’s asthma diagnosis is
not supported by substantial evidence, and that remand is warranted for the ALJ to
properly consider the medical evidence and to determine whether the Claimant is
disabled due to asthma under Listing 103.03.3
2

Extrinsic asthma is defined as “asthma caused by some factor in the environment,
usually atopic asthma. Onset is usually in childhood and almost always before age 30.”
DORLAND’S ILLUSTRATED MEDICAL DICTIONARY, supra note 3, at 170.
3

The Commissioner’s brief states that “the ALJ was not required to mechanically recite
the evidence leading to his determination and it may be implied from his decision that Claimant
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VI. CONCLUSION
Based on the foregoing, the court concludes that the ALJ’s determination
that the Claimant is not disabled is not supported by substantial evidence or based
upon a fully developed record, and, therefore, the Commissioner’s final decision is
REMANDED.
DONE the 22nd day of October, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

did not meet or equal Listing 103.03B.” Doc. 11 at 19. This statement is only partially true. The
Eleventh Circuit has held that “the ALJ’s finding as to whether a claimant meets a listing may be
implied from the record.” Davenport, 403 Fed. Appx. at 354 (emphasis added). The inference
exists when there is substantial evidence to support the ALJ’s final conclusion and the ALJ’s
“statement of the relevant law recognized that an affirmative determination regarding the
applicability of any Appendix I listing. . . would require a determination that the appellant was
disabled.” Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986). In this instance,
however, the ALJ’s “statement of the relevant law” fails to make this recognition.
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