Bowens v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 8/22/2014. (PSM)
2014 Aug-22 PM 12:52
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MALAIKA COBB, o/b/o Z.G.B.,
CAROLYN W. COLVIN,
Acting Commissioner of Social
CIVIL ACTION NO.
Plaintiff Malaika Cobb (“Cobb”) brings this action on behalf of her son,
Z.G.B. (“the 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 supported by substantial evidence.
Therefore, for the reasons elaborated herein, the court will affirm the decision
I. Procedural History
Cobb protectively filed an application on behalf of her minor child, Z.G.B.,
for the child’s Supplemental Security Income (“SSI”), alleging a disability onset
date of April 1, 2008, due to Asthma. (R. 10, 172). After the SSA denied his
claim, the Claimant requested a hearing before an ALJ. (R. 101). The ALJ
subsequently denied the Claimant’s claim, (R. 7-24), which became the final
decision of the Commissioner when the Appeals Council refused to grant review.
(R. 1-6). Cobb then filed this action for judicial review pursuant to 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) mandates 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
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, 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, 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 his alleged
disability onset date. (R. 13). Next, in satisfaction of Step Two, the ALJ found
that the Claimant suffers from the severe impairment of “asthma.” Id. Finally,
at Step Three, the ALJ concluded that the Claimant’s impairments did not meet,
medically equal, or functionally equal any of the listed impairments and,
therefore, found that the Claimant was not disabled. (R. 13-14).
The court now turns to Cobb’s contentions that the ALJ erred by failing to
(1) find the Claimant met listing 103.03B; and (2) fully develop the record by
utilizing a medical expert. See doc. 10 at 5-8. The court addresses each
contention in turn.
The ALJ properly found the Claimant did not meet listing 103.03B.
Cobb contends that the Claimant meets listing 103.03B based on numerous
treatment notes that she asserts show asthma attacks. Doc. 10 at 6-7. To meet
listing 103.03B, the Claimant must have asthma with:
[a]ttacks (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.
Listing 3.00C defines “attacks” 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.” The
Claimant bears the burden of showing that his impairments meet a listed
impairment. Barron v. Sullivan, 924 F.2d 227, 229 (11th Cir. 1991). Moreover,
the Claimant’s impairments must “meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter how severely,
does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in
Cobb identifies numerous physician visits during the relevant time period
(October 2008 through September 2009) that she contends qualify as “attacks”
within the meaning of the listing.1 Doc. 11 at 6. Unfortunately for Cobb, a
review of the record shows that none of the six visits occurring during the
October 2008 - September 2009 period was of sufficient severity to constitute an
“attack” under listing 3.00C. For example, Dr. Mary R. Santiago, the Claimant’s
treating pediatrician, treated the Claimant for a rash and sinusitis on October 15,
2009, (R. 272), for a “knot on [the] back of [his] head” diagnosed as a fungal
infection on April 13, 2009, (R. 239, 241), for a cough, fever and sinusitis on
September 25, 2009, (R. 261, 264), and for an “acute illness” diagnosed as
influenza on September 28, 2009, (R. 268). At each of these four visits, Dr.
Santiago’s treatment notes show that she did not assess asthma or find that the
Claimant had trouble breathing. (R. 241, 263-64, 268, 274). Moreover, even the
visits when Dr. Santiago treated the Claimant for asthma fail to show that the
Claimant had an asthma attack as defined by the regulations: (1) Dr. Santiago
saw the Claimant on November 17, 2008, for coughing, wheezing, and fever, (R.
Cobb listed seven visits: October 15, 2008; November 17, 2008; January 29,
2009; April 13, 2009; September 13, 2009; September 25, 2009; and September 28,
2009. Doc. 10 at 6. However, there is no record of a visit on September 13, 2009. The
nearest visit to that date is for a “well child visit,” on September 14, 2009, when Dr.
Santiago noted the Claimant was “healthy school is fine has [a history of] asthma doing
well plays football.” (R. 248).
276-78), and (2) on January 29, 2009, for coughing and shortness of breath. (R.
231-34). However, on both occasions Dr. Santiago sent the Claimant home with
prescription medications, and the Claimant received no “intensive treatment”
such as “intravenous bronchodilator or antibiotic administration or prolonged
inhalational bronchodilator therapy in a hospital, emergency room or equivalent
setting” as required by listing 3.00C. (R. 231-34, 276-78).
Cobb next lists six visits from December 2009 through December 2010
that she contends are “attacks that required physician intervention.”2 Doc. 10 at
6). As with the Claimant’s earlier visits, none of these visits qualifies as
“attacks” as defined in listing 3.00C. For instance, when the Claimant saw Dr.
Santiago on June 2, 2010, it was for a “well child visit” to get a “sports physical
for football,” (R. 355), and on August 27, 2010, the Claimant complained of
fever, sore throat, diarrhea, and a runny nose, (R. 336). Dr. Santiago made no
mention of an asthma attack, and, in fact, found “no rales, rhonchi, or wheezes”
on physical examination. (R. 358, 338). Indeed, even the plaintiff’s emergency
room visits fail to qualify as “attacks” under listing 3.00C. Specifically, when
the Claimant visited the Marion Regional Medical Center emergency room on
Cobb lists these visits as being on June 2, 1010; August 27, 2010; September
12, 2010; September 13, 2010; October 9, 2010; and October 10, 2010. Doc. 10 at 6.
However, there is no treatment note dated October 10, 2010 in the record.
September 12, 2010, for “coughing” and “sinus drainage,” (R. 301), the Claimant
had normal blood oxygen, with an oximetry reading of 99 percent. (R. 303). At
this visit, the Claimant was diagnosed with an upper respiratory infection, given
a prescription for an anti-inflammatory medication, and sent home the same day
without any intensive treatment for asthma. (R. 307). In fact, when Dr. Santiago
saw the Claimant the next day, she noted that the Claimant’s “wheezing is
better,” that he “plays football,” and experiences coughing and wheezing “when
running.” (R. 350). Although Dr. Santiago noted that the Claimant was
experiencing an “acute exacerbation” of his asthma, (R. 353), she found “no
rales, rhonchi, or wheezes” on physical examination, (R. 352), noted the
Claimant’s asthma exacerbation had improved, and recommended that the
Claimant take his medications as needed “before PE and sports.” (R. 353). The
final treatment note cited by Cobb shows that the Claimant visited the Marion
Regional Medical Center emergency room on October 9, 2010, for “asthma and a
cough,” (R. 290), and that tests showed the Clamant had normal blood oxygen,
with an oximetry reading of 100 percent, and mild wheezing. (R. 294). As a
result, the Claimant received prescriptions and was sent home without receiving
any intensive treatment in the emergency room. (R. 299). In other words, the
treatment record simply does not support Cobb’s contention that the Claimant
suffered “attacks” as defined in listing 3.00C.
Ultimately, the Claimant bears the burden of presenting medical evidence
showing his impairments meets a listing. Zebley, 493 U.S. at 531. Unfortunately
for the Claimant, the evidence shows that he has not suffered the requisite asthma
attacks required to meet listing 103.03B. Therefore, Cobb failed to meet her
burden of establishing that the ALJ committed reversible error by finding the
Claimant’s impairments did not equal a listing.
The ALJ did not err by failing to utilize a medical expert.
Cobb’s final contention is that the ALJ “needed a medical expert to
determine whether the symptoms of each physician intervention . . . were the
result of symptoms of asthma.” Doc. 10 at 8. However, as is evident from the
discussion of the doctor visits in the previous section, the ALJ needed no medical
expert to determine that the physician interventions cited by the plaintiff were not
“attacks” as defined in listing 3.00C. In fact, the treatment notes that Cobb relies
on are self explanatory and do not require interpretation by a medical expert.
Accordingly, the ALJ did not err in failing to utilize a medical expert.
Based on the foregoing, the court concludes that the ALJ’s determination
that the Claimant is not disabled is supported by substantial evidence, and that
the ALJ applied proper legal standards in reaching this determination. Therefore,
the Commissioner’s final decision is AFFIRMED. A separate order in
accordance with the memorandum of decision will be entered.
Done, this the 22nd day of August, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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