Johnson v. Social Security Administration, Commissioner

Filing 17

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 2/24/2014. (AVC)

FILED
2014 Feb-25 AM 09:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
VIANTKA JOHNSON, o/b/o B.K.S.,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Civil Action No. 4:12-CV-2834-RDP

MEMORANDUM OF DECISION
Viantka Johnson (“Plaintiff”) brings this action on behalf of her son (“B.K.S.”), pursuant
to Title XVI of Section 1631(c)(3) of the Social Security Act (the “Act”), seeking review of the
decision by the Commissioner of the Social Security Administration (“Commissioner”) denying
her claim for Children’s Supplemental Security Income (“SSI”). See 42 U.S.C. § 1383(c). Based
upon the court’s review of the record and the briefs submitted by the parties, the court finds that
the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
Plaintiff filed her application for SSI on behalf of B.K.S. on August 10, 2009 in which

she alleged that disability began on July 13, 2009. (Tr. 98-101). Plaintiff’s application was
initially denied by the Social Security Administration on November 4, 2009. (Tr. 65-68).
Plaintiff then requested and received a hearing before Administrative Law Judge Michael L.
Levinson (“ALJ”) on December 14, 2010. (Tr. 73-74). The ALJ reached his decision on
December 18, 2010, and determined that B.K.S. had not been under a disability within the
meaning of Section 1614(a)(3)(C) of the Act since August 19, 2009, the date the application was

filed. (Tr. 58-62). After the Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision (Tr. 1), that decision became the final decision of the Commissioner, and therefore a
proper subject of this court’s appellate review.
B.K.S. was five years old at the time of the hearing. (Tr. 9). Plaintiff alleges that B.K.S.
has been disabled since July 13, 2009 because of asthma. (Tr. 98). Additionally, Plaintiff alleges
in a letter brief filed with this court on February 5, 2013, that B.K.S. has also suffered from
allergies and sleep apnea since his birth. (Pl.’s Brief 1).
B.K.S. interviewed with the agency field office on August 10, 2009. (Tr. 126-29). The
interviewer noted that B.K.S. had no difficulty breathing or talking. (Tr. 127-28). The
interviewer went on to note that B.K.S. had no problems with hearing, reading, breathing,
understanding, coherency, concentrating, talking, sitting, standing, walking, seeing, using hands,
or writing. (Tr. 128). State agency physician Dr. Robert Heilpern issued a Childhood Disability
Evaluation Form on November 4, 2009. (Tr. 190-95). Dr. Heilpern reviewed B.K.S.’s medical
records and determined that he had “mild persistent asthma” which was not a “severe”
impairment. (Tr. 190). Dr. Heilpern found that the allegations of B.K.S.’s frequent asthma
attacks were not credible and that his condition was under control. (Tr. 190).
B.K.S. has been diagnosed with asthma several times during his alleged disability onset
date. (Tr. 180-81, 204-05, 212). However prior to his onset date, Plaintiff had sought treatment
for B.K.S.’s asthma related illnesses. On January 19, 2009, six-months prior to his alleged onset
date of disability, B.K.S. was admitted to St. Vincent’s Hospital East with his chief complaint
listed as asthma. (Tr. 153). The attending physician conducted a respiratory exam which showed
normal breathing sounds, but also some wheezing. (Tr. 155). The physician noted under the
clinical impression part of B.K.S.’s chart that he had a “bronchospasm,” and declined to consider

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B.K.S.’s condition an acute exacerbation of asthma under the Clinical Impression portion of the
treatment note. (Tr. 155). Furthermore, B.K.S.’s chest x-ray that same day showed clear lungs
and normal lung volumes. (Tr. 62, 159). His medical records also document numerous visits to
the Jefferson County Department of Health (“JCDH”) prior to his disability onset date: February
25, 2008 complaining of vomiting (Tr. 186-87); August 1, 2008 for a routine physical
examination (Tr. 184-85); October 30, 2008 complaining of coughing, fever, and wheezing
(attending physician assessed B.K.S. with mild persistent asthma questioning the exacerbation
due to no wheezing during the exam) (Tr. 183-84); February 17, 2009 for vomiting and diarrhea
(Tr. 182-83); and April 14, 2009 for fever, cough and headache (Tr. 181-82). B.K.S. was
diagnosed with acute asthma exacerbation on two of these prior visits (Tr. 182, 187) while the
rest of the visits mentioned Plaintiff’s history and diagnosis of mild persistent asthma. (Tr. 18283, 183-84, 184-85).
B.K.S. was diagnosed at the JCDH several times after his alleged onset date of disability.
(Tr. 180, 201-05). Plaintiff sought treatment for him from Dr. Harmon at the JCDH on July 17,
2009 for complaints of a sore throat, vomiting, and a fever. (Tr. 180). Plaintiff did not report any
asthma-related symptoms. (Tr. 180). Dr. Harmon noted that B.K.S.’s lungs were clear, observed
no inspiratory retraction, and did not hear any wheezing. (Tr. 180). He noted that B.K.S had
dyspnea when running long distances and diagnosed him with “mild persistent asthma.” (Tr.
180).
Plaintiff sought treatment from Dr. Harmon again for B.K.S. four months later on
November 18, 2009 complaining of coughing and a sore chest. (Tr. 204-05). Dr. Harmon noted
that B.K.S.’s reported history was “mild persistent asthma.” (Tr. 205). Upon physical

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examination, Dr. Harmon found no wheezing, no inspiratory retraction, and clear lungs. (Tr.
205). Dr. Harmon diagnosed B.K.S. with asthma with acute exacerbation. (Tr. 205).
Four months later, on March 8, 2010, Plaintiff returned to JCDH reporting B.K.S. was
coughing and wheezing. (Tr. 203). Dr. Balas found no acute distress, and an exam of B.K.S.’s
lungs showed only “mild” wheezing, good air exchange, no inspiratory retraction, and clear
lungs. (Tr. 203-04). Dr. Balas also noted that Plaintiff had not refilled B.K.S.’s medications since
his last visit and Dr. Balas stressed that Plaintiff should comply with recommended follow-ups
and refill B.K.S.’s medicines every month. (Tr. 204).
Plaintiff returned to JCDH later that month on March 26, 2010 complaining of B.K.S.’s
sore throat and fever. (Tr. 202-03). The medical examiner, Dr. Rosemary Faust, noted that
B.K.S.’s upper airway and lungs were normal, but did not mention his asthma. Plaintiff returned
on May 27, 2010 reporting B.K.S. was experiencing non-asthma-related symptoms including
fever, sore throat, and headache. (Tr. 201). B.K.S.’s airway was normal and his lung exam was
essentially normal. (Tr. 201). His diagnosis included asthma, but the suggested treatment was to
“treat symptoms us[ing] inhaler once home.” (Tr. 202).
Plaintiff twice sought treatment for B.K.S. for asthma related symptoms from Children’s
Health System Emergency Department. On September 16, 2010, Plaintiff was admitted to the
emergency department for cough and congestion. (Tr. 213-16). B.K.S. had normal, non-labored
respirations, normal breath sounds, and a chest wall not tender to palpitation, and his diagnoses
included cough, congestion, and rhinorrhea. (Tr. 215). Further, B.K.S. did not meet the criteria
for an emergency medical condition, as the emergency triage decision was “Green-Non Urgent.”
(Tr. 215).

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B.K.S. was again admitted to Children’s Health System Emergency Department on
October 13, 2010. (Tr. 209). He was pain-free, had clear breathing sounds, and had “[n]o
increased work of breathing.” (Tr. 209). His respiratory assessment indicated no acute
respiratory distress, a normal respiratory rate, no stridor, normal respiratory effort, and nonlabored respirations. (Tr. 209). However, it did show “scattered expiratory wheezing.” (Tr. 210).
B.K.S. was diagnosed with asthma exacerbation and was released in stable condition. (Tr. 212).
The medical examiner again noted B.K.S.’s condition did not meet the criteria for an emergency
medical condition. (Tr. 212).
Plaintiff submitted additional evidence to this court on March 15, 2013, and also attached
to his complaint and February 5, 2013 letter brief, prescription forms, emergency room discharge
instructions, releases to return to school, and doctor appointment forms. (See Docs. #1, 12-1, 14).
II.

ALJ’s Decision
For a child to be determined disabled as defined under the Act, the child must “have a

medically determinable physical or mental impairment or combination of impairments that
causes marked and severe functional limitations, and that can be expected to cause death or that
has lasted or can be expected to last for a continuous period of not less than 12 months.” 20
C.F.R. § 416.906. A physical or mental impairment is defined as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508.
Social Security regulations provide a three-step test for determining whether a child is
disabled. 20 C.F.R. § 416.924(a); see e.g. Wilson v. Apfel, 179 F.3d 1276, 1277 n.1 (11th Cir.
1999); Cole v. Barnhart, 436 F. Supp. 2d 1239, 1241 (N.D. Ala. 2006). First, the ALJ must
determine whether the child is engaging in substantial gainful activity. “Substantial gainful

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activity” is work activity that involves doing significant physical or mental activities for pay or
profit. 20 C.F.R. § 416.972. If the child engages in substantial gainful activity, then the child
cannot claim disability regardless of the child’s medical condition. 20 C.F.R. § 416.924(b). If the
child is found to not be engaging in substantial gainful activity, the analysis proceeds to step two.
In the second step, the ALJ must determine whether the child has a medically
determinable impairment or combination of medical impairments that is “severe” under the Act.
20 C.F.R. § 416.924(c). At this stage of the analysis, “severe” as understood under Social
Security Regulations requires that the child have a medically determinable impairment, or
combination of impairments, that is not merely a slight abnormality that causes no more than
minimal functional limitations. Id. Absent such a “severe” impairment, the child may not claim
disability. Id.

If the child does have a severe impairment (or combination of medical

impairments that are severe), the analysis proceeds to step three.
Third, the ALJ must determine whether the child’s impairment meets or medically equals
an impairment included in the Listing of Impairments in 20 C.F.R. § 404, Subpart P, Appendix 1
(a “Listing”). 20 C.F.R. § 416.924(d). If the child’s impairment meets a Listing, the child is
declared disabled. Id. Alternatively, the child may also be declared disabled if the child’s
impairment or combination of impairments functionally equals a Listing. Id. In determining
whether the child’s impairment or combination of impairments functionally meets a Listing, the
ALJ must consider the child’s functional capacity with regard to six domains. 1 20 C.F.R. §
416.926a. To functionally equal a Listing, the child’s impairment or combination of impairments
must result in “marked” limitations in two of the domains or an “extreme” limitation in one

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A domain is a broad area of functioning. The six domains considered in determining whether a child’s
impairment functionally equals a Listing are: (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 yourself;
and (6) health and physical well-being. 20 C.F.R. § 416.926a(b)(i)-(vi).

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domain. 20 C.F.R. 416 § 926a(d). A “marked” limitation is one that “interferes seriously with
[the child’s] ability to independently initiate, sustain or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i). It is “more than moderate” but “less than extreme” and is equivalent to the
functioning one “would expect to find on standardized testing with scores that are at least two,
but less than three, standard deviations below the mean.” Id. An “extreme” limitation is one that
“interferes very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3)(i). A finding of “extreme” limitation requires a limitation
that is “more than marked” and is “the equivalent of the functioning [one] would expect to find
on standardized testing with scores that are at least three standard deviations below the mean.”
Id. In assessing whether the child has a “marked” or “extreme” limitation or combination of
limitations, the ALJ must consider the functional limitations from all medically determinable
impairments, including impairments that are not severe. 20 C.F.R. 416.926a(a). The ALJ must
consider the interactive and cumulative effects of the child’s impairment or combination of
impairments in any affected domain. 20 C.F.R. 416.926a(c).
Applying this analysis in the instant case, the ALJ determined that B.K.S. has not
engaged in substantial gainful activity. (Tr. 62). However, the ALJ also determined that there
were no medical signs or laboratory findings to substantiate the existence of a medically
determinable impairment under 20 C.F.R. §§ 416.924(c) and 416.929(b). (Tr. 62). The ALJ then
concluded that B.K.S. had not been disabled, as defined in the Act, since July 31, 2009, the date
his applications were filed. (Tr. 62).

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III.

Plaintiff’s Argument for Reversal
Although Plaintiff did not file a formal Memorandum in Support of Reversal of the

Commissioner’s decision outlining her arguments, she nonetheless requested a court review by
submitting her February 5, 2013 letter brief. (Pl. Brief 1). Plaintiff writes:
“I am writing this statement on behalf of my son [B.K.S.] stating that I think he
does meet the requirements for disability because he has had asthma, allergies,
and sleep apnea since birth. I have been struggling to get him to all of his
doctor[’]s appointments, he has had to go to the E.R. many times, he has many
prescriptions, and just recently had to be admitted to the special care unit at
Children’s Hospital for an asthma attack for 5 days. He has had 2 appointments
for the asthma clinic after he was discharged from the hospital and he still has one
coming Feb 21, 2013. Enclosed with this statement [are] records of doctor visits
an[d] prescriptions.”
(Pl. Brief 1). Plaintiff enclosed additional medical, school, and prescription records. From this
short statement, this court understands that Plaintiff’s argument for reversal is the ALJ did not
base his findings on substantial evidence, and that the additional evidence is new and material
and warrants a remand.
IV.

Standard of Review
Judicial review of disability claims under the Act is limited to whether the

Commissioner’s decision is supported by substantial evidence or whether the correct legal
standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.
2002). “Substantial evidence is less than a preponderance, but rather such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Moore v. Barnhart, 405
F.3d 1208, 1211 (11th Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). The
Commissioner’s factual findings are conclusive when supported by substantial evidence.
Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If supported by substantial evidence, the

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Commissioner’s findings must be affirmed, even if the record preponderates against the
Commissioner’s findings. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir.
2004); see also Martin, 894 F.2d at 1529. Legal standards are review de novo. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
V.

Discussion
After careful review, the court concludes for the reasons stated below that substantial

evidence supports the ALJ’s findings and that the ALJ correctly applied the law.
A.

Plaintiff’s New Evidence Proffer

First, the court addresses Plaintiff’s contention that this case should be reversed and
remanded due to new and material evidence presented to this court. The Eleventh Circuit has
held that in order to warrant remand for consideration of new evidence, a plaintiff must establish
(1) that new, non-cumulative evidence exists; ( 2) that the evidence is material (i.e., relevant and
probative so that a reasonable possibility exists that it would change the administrative result);
and (3) that good cause exists for the failure to incorporate the evidence into the record in the
ALJ's proceedings. See, e.g., Archer v. Comm’r of Soc. Sec., 176 Fed. Appx. 80, 82-83 (11th Cir.
2006) (per curiam); Magill v. Comm’r of Soc. Sec., 147 Fed. Appx. 92, 95-96 (11th Cir. 2005)
(per curiam); Vega v. Comm’r of Soc. Sec., 265 F.3d 1214, 1218-19 (11th Cir. 2001); Falge v.
Apfel, 150 F.3d 1320, 1323-24.
Plaintiff attached the following evidence to the complaint: (1) prescription forms dated
January 29, 2011, and signed by Dr. Kimberly Grant at Children’s Health System Emergency
Department (Doc. #1 at 8); (2) an emergency room discharge instruction showing Plaintiff was
diagnosed with status asthmaticus and pediatric viral syndrome on January 29, 2011 (Doc. #1 at
11); (3) medication reconciliation forms showing which medications B.K.S. was taking prior to

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his emergency room visits on January 29, 2011 and February 9, 2011, and which medications he
received in the emergency room on those dates (Doc. #1 at 11-13); (4) St. Vincent’s St. Clair
Emergency Department discharge instructions from August 19, 2011 (for fever), September 9,
2011 (for fever), April 23, 2012 (for fever), July 11, 2012 (for a wound), and August 24, 2012
(for an unspecified reason) (Doc. #1 at 5-6, 9, 16-17); (5) a home safety checklist (Doc. #1 at
15); and (6) an illegibly dated rental equipment form for liquid oxygen and accessories (Doc. #1
at 14).
In addition, Plaintiff attached the following evidence to the February 5, 2013 letter brief:
(1) a release to return to school form allowing B.K.S. to return to school one week after a fiveday hospitalization due to asthma from August 26-30, 2012, an Asthma Discharge Action Plan,
and record of medications he was given on August 26, 2012 (Doc. #9 at 7-9, 14); (2) two release
forms to return to school after appointments at the Children’s Hospital of Alabama on September
20, 2012, for an unspecified reason, and October 10, 2012, for an ENT appointment (the October
2012 release allowed B.K.S. to return to school the next day with “regular activity/no
restrictions” and the September 2012 release did not show that B.K.S.’s activities were limited
(Doc. #9 at 4, 10-11); (3) a record of a possible outpatient surgery on November 14, 2012 (Doc.
#9 at 12); (4) prescription records from B.K.S.’s visit to Children’s Hospital of Alabama on
December 12, 2012, and a release stating he could return to school the next day with no activity
restrictions (Doc. #9 at 3, 22-29); (5) a record from December 2012 showing B.K.S. had doctor
appointments scheduled for December 13, 2012, February 21, 2013, and April 11, 2013 (Doc. #9
at 2); (6) an undated Asthma Action Plan (Doc. #9 at 21); and (7) records of B.K.S.’s scheduled
and rescheduled appointments in October and December 2012 (Doc. #9 at 5-6). Plaintiff filed
another letter brief on February 26, 2013 which appears to be the same as the February 5, 2013,

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letter brief, except for hand-written notations to Plaintiff’s phone number and address (Doc. No
11 at 1). Plaintiff did not attach any additional evidence to the February 26, 2013 letter brief.
On March 15, 2013 this court received additional evidence from Plaintiff (Doc. #14)
which included: (1) an undated asthma action plan listing B.K.S’s medications (Doc. #14 at 1);
(2) Pell City School System notice and consent for evaluation form dated January 30, 2013 (Doc.
#14 at 2); (3) 2012-2013 school year report card for 3rd 9 week averages (Doc. #14 at 3); (4)
illegibly dated rental equipment form for liquid oxygen and accessories (Doc. #14 at 4); (5) letter
requesting parent consent to get B.K.S.’s vision and hearing checked dated January 29, 2013
(Doc. #14 at 5); (6) prescription records from B.K.S.’s visit to Children’s Hospital of Alabama
on February 21, 2013 and a release stating he could return to school the next day with no activity
restrictions (Doc. #14 at 6-15); (7) two copies of prescription records from Children’s Health
System Emergency Department dated January 29, 2011 (Doc. #14 at 16, 53); (8) two copies of a
record from October 1, 2012 showing B.K.S. had a doctor’s appointment scheduled for
December 3, 2012 (Doc. #14 at 17, 52); (9) three releases allowing B.K.S. to return to school
with no activity restrictions dated September 21, 2012, October 10, 2012, and December 13,
2012 (Doc. #14 at 18-19, 21, 54); (10) two copies of a release to return to school form allowing
B.K.S. to return to school one week after a five-day hospitalization due to asthma from August
26-30, 2012 (Doc. #14 at 20, 43); (11) two copies of a release to return to school form allowing
B.K.S. to return to school one week after a one day surgery on November 14, 2012 stating “No
PE for two weeks” (Doc. #14 at 22, 42); (12) an Alabama Medicaid Referral Form dated October
2, 2012 (Doc. #14 at 23); (13) two lists of B.K.S.’s scheduled appointments on October 25, 2012,
December 3, 2012, December 13, 2012, and February 21, 2013 (Doc. #14 at 23-24); (14)
hospital records from B.K.S.’s five day stay at Children’s Hospital of Alabama dated August 26,

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2012 through August 30, 2012 (Doc. #14 at 25-38); (15) a Children’s Hospital Emergency
Department medications list dated February 9, 2011 (Doc. #14 at 39); (16) an asthma discharge
action plan dated August 30, 2012 (Doc. #14 at 41); (17) medications reconciliation list and
discharge instructions dated January 29, 2011 from Children’s Health System (Doc. #14 at 4446); (18) Jefferson Health System pharmacy records (Doc. #14 at 47-51); and (19) an orders
summary record dated August 26, 2012 from Children’s Health Systems (Doc. #14 at 55).
The court will begin by addressing the good cause element. The Commissioner does not
dispute that there is good cause for Plaintiff’s failure to submit the additional records dated after
January 12, 2011 because those records did not exist when Plaintiff requested review of the
ALJ’s hearing decision, and therefore could not have been submitted to the Appeals Council. See
Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir.1985) (“Good cause for failing to present
evidence earlier may exist where, as here, the evidence did not exist at the time of the
administrative proceeding.”) All of the additional records offered by Plaintiff relate to the period
January 29, 2011 through April 11, 2013. Therefore, the court finds there is good cause for
Plaintiff not submitting the records in question.
As for the materiality of this new evidence, all records that Plaintiff submitted relate to
the period January 29, 2011 through April 11, 2013. Thus, these records are irrelevant to the
period that the ALJ had under consideration in reaching his December 18, 2010 decision. (Tr.
62). See 20 C.F.R. § 416.1470(b); Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261. Even if
this court were to find that the additional evidence documents a worsening in B.K.S.’s condition,
this would still not be relevant to the ALJ’s December 18, 2010 decision. See Wilson v. Apfel,
179 F.3d 1276, 1279 (11th Cir. 1999) (“We review the decision of the ALJ as to whether the
claimant was entitled to benefits during a specific period of time, which period was necessarily

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prior to the date of the ALJ’s decision.”); Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997)
(“An implicit requirement is that the new evidence pertain to the time period for which benefits
are sought, and that it not concern later-acquired disabilities or subsequent deterioration of a
previously non-disabling condition.”).
B.

The ALJ’s Decision

The court’s review of the ALJ’s decision is limited to whether his decision is supported
by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. 405(g);
Wilson v. Barnhart, 284 F.3d 1219, 1221. For the reasons explained below, the court finds that
the ALJ correctly applied the appropriate legal standards and that the ALJ’s decision is supported
by substantial evidence. Here, the ALJ determined B.K.S. had not engaged in substantial gainful
activity, and that there were no medical signs or laboratory findings to substantiate the existence
of a medically determinable impairment under 20 C.F.R. §§ 416.924(c) and 416.929(b). (Tr.
62). The ALJ then concluded that B.K.S. had not been disabled, as defined in the Act, since July
31, 2009, the date his applications were filed. (Tr. 62).
After careful evaluation of the record, the court concludes that the ALJ properly
determined that: (1) B.K.S. has not engaged in substantial gainful activity since July 31, 2009,
the date he applied for SSI; and (2) B.K.S. had no medically determinable impairment. (Tr. 62).
Thus, the ALJ found that B.K.S. was not disabled. (Tr. 62). The ALJ found no medical signs or
laboratory findings to substantiate that B.K.S. had a medically determinable impairment. (Tr.
62). See Social Security Ruling (SSR) 96-5, 1996 WL 374187 at *1 (1996) (the existence of a
medically determinable physical or mental impairment must be established by objective medical
abnormalities, i.e., medical signs and laboratory findings). The ALJ specifically pointed out that
B.K.S.’s x-rays of his chest and lungs, dated January 9, 2009, were normal. (Tr. 62, 159). See

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Social Security Ruling (SSR) 96-5, 1996 WL 374187 at *1 (1996) (where there are no medical
signs or laboratory findings to substantiate the existence of a medically determinable
impairment, the individual must be found not disabled).
Even assuming the ALJ should have found that B.K.S. had a medically determinable
impairment (and, to be clear, the record evidence supports his finding that B.K.S. did not), the
record shows B.K.S. has no impairment rising to the level of a “severe” impairment. An
impairment is not “severe” if it is a slight abnormality or combination of slight abnormalities that
cause no more than minimal limitations. See 20 C.F.R. 416.924(c); Brady v. Heckler, 724 F.2d
914, 920 (11th Cir. 1984); SSR 85-28, 1985 WL 56856 at *2 (1985). Plaintiff bears the initial
burden of demonstrating that B.K.S.’s impairments are “severe.” See Bowen v. Yuckert, 482 U.S.
137, 146 n. 5 (1987); Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).
B.K.S. has been diagnosed with asthma several times, but the Eleventh Circuit has
recognized that “the mere existence of impairments does not reveal the extent to which they limit
[his] ability to work or undermine the ALJ’s determination in that regard.” Moore v. Barnhart,
405 F.3d 1208, 1213 n.6 (11th Cir. 2005). It is the functional limitations that may result from a
claimant’s impairments, not the impairments themselves, which affect his ability to work. See 20
C.F.R. § 416.945(a); Johns v. Bowen, 821 F.2d 551, 555 (11th Cir. 1987) (a mere diagnosis says
nothing about the severity of the impairment); McCruter v. Brown, 791 F.2d 1544, 1547 (11th
Cir. 1986) (“the ‘severity’ of a medically ascertained disability must be measured in terms of its
effect upon ability to work, and not simply in terms of deviation from purely medical standards
of bodily perfection or normality”).
The medical record provides substantial evidence to show that B.K.S.’s asthma did not
cause the required functional limitations. B.K.S.’s respiratory exam on January 19, 2009 showed

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normal breathing sounds, but also some wheezing. (Tr. 155). An x-ray done on that same day
showed clear lungs and normal lung volumes. (Tr. 62, 159). B.K.S. sought asthma-related
treatment from Children’s Health System Emergency Department on October 13, 2010.
However, the emergency triage was marked “green-non urgent” and the records noted that he
was pain-free, had clear breathing sounds, and had “[n]o increased work of breathing.” (Tr. 209).
The medical examiner also noted that B.K.S.’s condition did not meet the criteria for an
emergency medical condition. (Tr. 212).
B.K.S. saw Dr. Harmon at JCDH on July 16, 2009 complaining of a sore throat,
vomiting, and fever. (Tr. 180). Dr. Harmon noted that B.K.S.’s lungs were clear, he observed no
inspiratory retraction, and did not hear any wheezing. (Tr. 180). He diagnosed B.K.S. with “mild
persistent asthma” and noted that B.K.S. had dyspnea when running long distances. (Tr. 180).
Four months later, B.K.S. returned to Dr. Harmon, whose physical findings again showed no
signs of wheezing, inspiratory retraction, and clear lungs. (Tr. 205). B.K.S. sought treatment
twice in March, but medical personnel found no acute distress, and B.K.S.’s lungs showed only
“mild” wheezing, good air exchange, clear and normal lungs, and no inspiratory retraction. (Tr.
202-04). B.K.S. had another examination on May 27, 2010 at JCDH which found his airways
were normal and his lungs were essentially normal. (Tr. 201). The repetition of B.K.S.’s lung
examinations coming back clear and normal provides substantial evidence to support the ALJ’s
decision.
B.K.S. was also interviewed by the agency field office on August 10, 2009. The
interviewer noted that B.K.S. had no trouble hearing, reading, breathing, understanding,
coherency, concentrating, talking, sitting, standing, walking, seeing, using hands, or writing. (Tr.
127-28). State agency physician Dr. Robert Heilpern issued a Childhood Disability Evaluation

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Form on November 4, 2009 after reviewing B.K.S.’s medical records, and he determined that
B.K.S. had “mild persistent asthma” which was not a “severe” impairment. (Tr. 190). State
agency consultants are considered experts in the Social Security disability programs, and their
opinions may be entitled to great weight if their opinions are supported by, and consistent with,
the evidence of record. See 20 C.F.R § 416.927(e)(2)(i); SSR 96-6p; 1996 WL 374180 at *2
(1996). Both the interviewer and Dr. Heilpern’s opinions are supported by the record and provide
substantial evidence in support of the ALJ’s decision.
B.K.S.’s asthma did not rise to the level of a “severe” impairment. If B.K.S. has no
medically determinable impairment or his impairment results in slight abnormalities that cause
no more than minimal functional limitations, there is no “severe” impairment and he is not
disabled. See 20 C.F.R. § 416.924(c). Even assuming the ALJ erred by finding B.K.S.’s asthma
is not a medically determinable “severe” impairment (and, to be clear, the ALJ did not), any
error is harmless because B.K.S.’s asthma does not meet or functionally equal a Listing and thus,
he is still not disabled. See Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983) (ALJ error was
harmless where correcting the error would not change the ALJ’s decision); Ward v. Comm’r of
Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (“[A] remand is not essential if it will amount to no
more than an empty exercise.”); see also, Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989);
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988); and Higgs v. Bowen, 880 F.2d 860, 861
(6th Cir. 1988).
VI.

Conclusion
The court concludes that the ALJ’s determination that B.K.S. is not disabled is supported

by substantial evidence and proper legal standards were applied in reaching this determination.

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The Commissioner’s final decision is therefore due to be affirmed and a separate order in
accordance with this memorandum of decision will be entered.
DONE and ORDERED this February 24, 2014.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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