C.O.M v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/2/2014. (PSM)
2014 Oct-02 AM 10:30
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
LISA MOZINGO, o/b/o C.O.M.,
CAROLYN W. COLVIN,
Acting Commissioner of Social
CIVIL ACTION NO.
Plaintiff Lisa Mozingo (“Mozingo”) brings this action on behalf of her
minor son, C.O.M. (“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 denying benefits.
I. Procedural History
Mozingo protectively filed an application on behalf of Claimant for the
child’s Supplemental Security Income (“SSI”), alleging a disability onset date of
October 22, 2002, due to Asthma and Attention Deficit Hyperactivity Disorder
(“ADHD”). (R. 16, 182). After the SSA denied his claim, Claimant requested a
hearing before an ALJ. (R. 134). The ALJ subsequently denied Claimant’s
claim, (R. 127), which became the final decision of the Commissioner when the
Appeals Council refused to grant review. (R. 1-3). Mozingo 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 he 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 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 meet,
medically equal, or functionally equal the severity of an impairment listed in
Appendix 1 of 20 C.F.R. Part 404, Subpart P (“the listings”). See id. To
“functionally equal” a listed impairment, the claimant’s impairment or
combination of impairments must result in “marked” limitations in two of the six
domains of functioning or an “extreme” limitation in one domain. 20 C.F.R.
IV. The ALJ’s Decision
Applying the three-step process for determining whether a child is
disabled, the ALJ concluded that Claimant is not disabled within the meaning of
the Act. (R.11). Although the ALJ found that Claimant has not engaged in any
substantial gainful activity since his alleged disability onset date, and suffers
from severe impairments of Asthma and ADHD, (R. 14), the ALJ concluded that
Claimant’s impairments ultimately did not meet, medically equal, or functionally
equal any of the listed impairments, (R. 13-21). More specifically, the ALJ
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).
found that Claimant’s impairments did not meet or medically equal Listing
103.03B and that Claimant does not experience marked limitations in any of the
six domains of functioning. Id.
Mozingo contends that the ALJ erred by finding that Claimant did not
meet Listing 103.03B, and that Claimant’s impairments did not functionally
equal a listed impairment. See doc. 13 at 10-16. The court disagrees with both
contentions and addresses each one in turn.
A. Listing 103.03B
To “meet” a listing, a claimant “must have a diagnosis included in the
listings and must provide medical reports documenting that the conditions meet
the specific criteria of the listings.” Wilson v. Banhart, 284 F.3d 1219, 1224
(11th Cir. 2002). More specific to the case at hand, to meet Listing 103.03B,
Claimant must establish that he has asthma with “attacks”
occurring at least once every 2 months or at least six times a year. Each
inpatient hospitalization for longer than 24 hours for control of asthma
counts as two attacks, and an evaluation period of at least 12
consecutive months must be used to determine the frequency of attacks.
20 C.F.R., Pt. 404, Subpt. P, App. 1 § 103.03B. “Attacks” are defined 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.” 20 C.F.R., pt. 404, subpt P., app. 1 §
Unfortunately for Claimant, although it is undisputed that he has asthma,
Claimant has failed to establish that his asthma “attacks” rise to the level
necessary to satisfy the Listing 103.03B criteria. According to the medical
records, Claimant experienced three asthma attacks that required physician
intervention: on December 18, 2008; on July 13, 2009; and on November 26,
2010. (R. 269, 322, 325). In pointing this out, the court does not in any way seek
to diminish Claimant’s symptoms. However, three incidents over a period of 23
months fail to satisfy Listing 103.03B, which requires asthma with attacks
“occurring at least once every 2 months or at least six times a year.”
To further support his claim, Claimant points to two emergency room
visits on February 28, 2009 through March 2, 2009, and on January 21, 2010,
which he seems to suggest qualify as asthma attacks. Doc. 13 at 12.
Unfortunately for Claimant, the court cannot count the 2009 emergency room
visit as an asthma attack because Claimant’s physician ultimately diagnosed
Claimant with bronchitis rather than asthma. R. 261. As for the 2010 emergency
room visit, while Claimant was treated for asthma, the hospital record does not
clearly establish whether Claimant experienced an asthma “attack” with
“prolonged symptomatic episodes . . . requiring intensive treatment,” as defined
by Listing 3.00C. In fact, the hospital record states that Claimant was not
suffering from any respiratory distress during the visit, and was discharged
within a few hours. (R. 248-51). However, even if both the 2009 and 2010
emergency room visits qualify as attacks,2 this would mean that Claimant had six
asthma attacks total between December 2008 and November 2010, which is still
not sufficient to meet Listing 103.03B.
Finally, Claimant also points to approximately 30 incidents that required
visits to a doctor purportedly “for asthma symptoms and treatment,” including
the December 2008 and July 2009 attacks referenced above. Doc. 13 at 12. The
records show, however, that aside from the December 2008 and July 2009
attacks, Claimant required treatment for asthma during only five of these doctors
visits. (R. 315, 320, 325, 400, 406). Unfortunately, nothing in the record
indicates that Claimant was having an “attack” during any of these five visits. Id.
Based on the record before this court, Claimant only experienced three
asthma attacks. Accordingly, Claimant has failed to meet the Listing 103.03B
The 2009 emergency room visit would qualify as two attacks since Claimant’s
hospital stay spanned over three days. See 20 C.F.R., Pt. 404, Subpt. P, App. 1 § 103.03B
(“Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two
attacks . . . .”)
criteria, which requires asthma with attacks occurring once every two months or
six times a year.
B. Impairment that functionally equals a listed impairment
In support of his contention that his asthma and ADHD impairments
functionally equal an impairment in the listings, Claimant argues that he
experiences marked limitations in domains one – acquiring and using
information, two – attending and completing tasks, three – interacting and
relating with others, five – caring for himself, and six – health and physical wellbeing. Doc. 13 at 14. Based on a review of the record, the court finds that the
ALJ did not err in finding that Claimant does not experience marked or severe
limitations in any of these domains.
1. Domains one, two, and three
With respect to domains one and two, Claimant relies heavily on the record
showing that he missed 22-27 days of school each school year in 2008, 2009, and
2010, and Mozingo’s testimony that Claimant’s grades have declined and that
Claimant’s teacher complains about his behavior “about every two weeks.” Doc.
13 at 14-15. Next, with respect to the third domain, i.e., interacting and relating
with others, Claimant merely contends that he has marked limitations “due to the
ADHD” and offers no support for the contention. Id. Unfortunately for Claimant,
the evidence belies his contentions regarding these three domains. For example,
Claimant’s second grade teacher reported that Claimant had “no problems”
acquiring and using information, attending and completing tasks, or relating and
interacting with others at school. (R. 194, 195). The teacher also indicated that
Claimant earned passing grades in all subjects. (R. 193). Indeed, Mozingo
testified before the ALJ that Claimant has never failed a subject in school, and
that he makes “A” letter grades in some subjects. (R. 112). The court finds that
these facts provide substantial evidence to support the ALJ’s finding that
Claimant does not experience marked limitations in the first three domains.
2. Domains five and six
In support of his contention that he can satisfy domains five and six, caring
for himself and health and physical well-being, Claimant merely argues that he
has severe limitations “due to the repeated medical interventions, ER visits and
missed days from school.” Doc. 13 at 16. To satisfy domain five, Claimant must
show that his impairment limits his capacity to independently complete day-today activities, such as dressing and bathing. 20 C.F.R. § 416.926a(k)(2)(iv).
Claimant has made no such showing. Likewise, Claimant has not made the
requisite showing for domain six, which addresses how recurrent illness, the side
effects of medication, and the need for ongoing treatment affect the child’s health
and sense of physical well-being. See 20 C.F.R. § 416.926a(l). Frequent illness
may amount to a marked limitation if a child has episodes of illness that occur on
average three times a year, each lasting two weeks or more. 20 C.F.R. §
416.926a(b)(2)(iv). While Claimant seems to suggest that his frequent visits to
the doctor and the emergency room establish a marked limitation under domain
six, doc. 13 at 15-16, Claimant’s medical records do not include any episodes of
illness that lasted two weeks or more. Therefore, there is no evidence here to
support a finding in favor of Claimant on domain six.
Because Claimant has not demonstrated that he experiences marked
limitations in at least two domains of functioning, the court finds that the ALJ
did not err in concluding that Claimant’s impairments do not functionally equal a
Based on the foregoing, the court concludes that the ALJ’s determination
that 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 the 2nd day of October, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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