Blake v. Astrue

Filing 29

Order that the decision of the Commissioner of Social Security denying plaintiff's benefits is AFFIRMED. Signed by Magistrate Judge Katherine P. Nelson on 12/3/2012. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIMOTHY L. BLAKE,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) CIVIL ACTION NO. 11-00672-N
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ORDER

Plaintiff Timothy L. Blake (“Blake”) filed this action seeking judicial review of a
final decision of the Commissioner of Social Security (“Commissioner”) that he was not
entitled to child insurance benefits based on disability (“child DIB”) and Supplemental
Security Income (“SSI”) under Titles II and XVI of the Social Security Act (the Act), 42
U.S.C. §§ 401-433 and 1381-1383c, respectively. Pursuant to the consent of the parties
(doc. 25), this action has been referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and
Fed. R.Civ.P. 73. See Doc. 27.
The matter came on for oral arguments on October 11, 2012, at which James J.
Dailey appeared for the plaintiff and Assistant United States Attorney Patricia Beyer
represented the Commissioner. Upon consideration of the administrative record (doc.15),

the parties’ respective briefs (Docs. 19, 21)1, and the parties’ respective oral arguments at
the hearing, the undersigned concludes that the decision of the Commissioner is due to be
AFFIRMED.
I.

Procedural History.

On March 3, 2008, Blake filed his applications for child DIB and SSI benefits,
alleging disability since September 1, 1991, due to problems with “cystic fibrosis,
stomach and pancreatitis” (Tr. 83, see also Tr. 134, 141, and 154). The applications were
denied on June 26, 2008 (Tr. 78, 83). Blake timely requested a hearing before an
Administrative Law Judge (“ALJ”) on August 26, 2008. (Tr. 90). Following a hearing
on December 14, 2009 (Tr. 30-61), the ALJ entered an unfavorable decision on January
6, 2010 (Tr. 19-29).
Blake filed a request on March 4, 2010, for a review of the ALJ’s decision by the
Appeals Council (“AP”). (Tr. 13) Blake’s counsel filed a brief with the AP on July 28,
2011 (Tr. 241– 274 and 275-283) and attached thereto two “new” exhibits (Tr. 284-288)2.
The first of these new exhibits is a letter dated May 5, 2009, addressed “To Whom It May
Concern” from Dr. Tung Tran, which states:
Mr. Timothy Blake (DOB 2/3/1982) has been under my care since February
2009 and has a lifelong history of cystic fibrosis (CF). His disease is
currently managed on multiple medications and while he is currently stable,
he will have continued CF exacerbations throughout his lifetime that may
1

Plaintiff’s counsel also filed a “Post Hearing Brief” (doc. 28) which was also reviewed by the

Court.
2

Blake did not argue that the ALJ should have considered the evidence presented in these “new”
exhibits but, instead, asserted that the ALJ’s decision “is contrary to the weight of all the evidence now in
the record.” (Tr. 260, emphasis added).

2

be completely disabling and limit his ability to perform physically
demanding activities. Please feel free to contact me for any further
questions.
(Tr. 285). The second exhibit presented to the AP by Blake is a letter dated July 27,
2011, from Dr. Brian Fouty and reports the results of pulmonary function testing
performed the preceding day, including “an FEV1 of 1.30 L which is 32% of predicted.”
(Tr. 286). The Appeals Council denied review of the ALJ’s decision on September 29,
2011 (Tr. 1-3)3, making the ALJ’s decision the final administrative decision for purposes
of judicial review. See 20 C.F.R. §§ 404.981, 416.1481.4
II.

Issue on Appeal.

Whether the ALJ properly evaluated Blake's cystic fibrosis and associated
impairments?5 Specifically, did the ALJ err in failing to conclude that Blake was
disabled under Listing 3.04?6

3

The Appeals Council found that the additional evidence proffered by Blake “did not provide a
basis for changing the [ALJ’s] decision.” (Tr. 2).
4

All references to the Code of Federal Regulations (C.F.R.) are to the 2011 edition. Subsequent
citations are to part 404, which addresses child DIB, and have parallel citations in part 416 which
addresses SSI claims under Title XVI of the Act.
5

Blake specifically contends that the ALJ "failed to review [his] claim of cystic fibrosis under
3.04 of the Listings of Impairments." (Doc. 19 at 3). According to Blake, "[t]he pulmonary
manifestations of cystic fibrosis should be evaluated under 3.04 of the Listings of Impairments" and, in
this case, "[t]he ALJ/Commissioner . . . evaluated [plaintiff's] cystic fibrosis under 4.0 and 5.0 of the
Listings which disregarded the plaintiff's respiratory problems." (Doc. 19 at 4). Blake further contends
that the ALJ erred because only the “non-pulmonary aspects of cystic fibrosis should be evaluated under
the digestive body system [analysis discussed in] 5.00 of the Listings of Impairments.” (Doc. 19 at 4).
6

Although Blake presents his “claims on appeal” in three separate paragraphs, the
substance of his claim is that the ALJ failed to evaluate him under Listing 3.04. See n. 5, supra.

3

III.

Standard of Review.
A.

Scope of Judicial Review.

In reviewing claims brought under the Social Security Act, this Court's role is a
limited one. Specifically, the Court's review is limited to determining: 1) whether the
decision is supported by substantial evidence, and 2) whether the correct legal standards
were applied. See, 42 U.S.C. § 405(g); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). Thus, a court may not
decide the facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996); Sewell v. Bowen,
792 F.2d 1065, 1067 (11th Cir. 1986). Rather, the Commissioner's findings of fact must
be affirmed if they are based upon substantial evidence. Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997); Chater, 84 F.3d at 1400; Brown v. Sullivan, 921 F.2d 1233,
1235 (11th Cir. 1991). See also, Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.
1990)(“Even if the evidence preponderates against the Secretary's factual findings, we
must affirm if the decision reached is supported by substantial evidence.”); Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (finding that substantial evidence is
defined as “more than a scintilla but less than a preponderance,” and consists of “such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion[ ]”). In determining whether substantial evidence exists, a court must view the
record as a whole, taking into account evidence favorable as well as unfavorable to the
Commissioner's decision. Lynch v. Astrue, 358 Fed.Appx. 83, 86 (11th Cir. 2009);
Martino v. Barnhart, 2002 WL 32881075, * 1 (11th Cir. 2002); Chester v. Bowen, 792
4

F.2d 129, 131 (11th Cir. 1986). Even where there is substantial evidence to the contrary
of the ALJ's findings, the ALJ decision will not be overturned where “there is
substantially supportive evidence” of the ALJ's decision. Barron v. Sullivan, 924 F.2d
227, 230 (11th Cir. 1991).
B.

Statutory and Regulatory Framework.

The Social Security Act's general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line. Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act, which defines disability in virtually identical
language for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20
C.F.R. §§ 404.1505(a), 416.905(a). A person is entitled to disability benefits when the
person is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
5

which has lasted or can be expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental
impairment” is one that “results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits. See 20 C.F.R. §§
404.1520, 416.920 (2010). The Eleventh Circuit has described the evaluation to include
the following sequence of determinations:
(1) Is the person presently unemployed?
(2) Is the person's impairment(s) severe?
(3) Does the person's impairment(s) meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?7
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also Bell v. Astrue, 2012
WL 2031976, *2 (N.D. Ala. May 31, 2012); Huntley v. Astrue, 2012 WL 135591, *1
(M.D. Ala. Jan. 17, 2012).

7

This subpart is also referred to as “the Listing of Impairments” or “the Listings.”

6

The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237–39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
Step 5, the burden shifts to the Commissioner, who must then show there are a significant
number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant's
Residual Functional Capacity (RFC). Id. at 1238–39. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also can contain both exertional and nonexertional limitations. Id. at
1242–43. At the fifth step, the ALJ considers the claimant's RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P, app. 2 (“grids”), or hear testimony
from a vocational expert (VE). Id. at 1239–40.
C.

Cystic Fibrosis.

Under the Social Security regulatory scheme, cystic fibrosis is described as " a
disorder that affects either the respiratory or digestive body systems or both and is
responsible for a wide and variable spectrum of clinical manifestations and
complications." 20 C.F.R. Pt. 404, Subpt. P, App. 1., § 3.0(D). The regulations
expressly require that:
The pulmonary manifestations of [cystic fibrosis] should be evaluated
under 3.04. The nonpulmonary aspects of cystic fibrosis should be
evaluated under the digestive body system (5.00). Because cystic fibrosis
7

may involve the respiratory and digestive body systems, the combined
effects of the involvement of these body systems must be considered in
case adjudication.
Id. Listing 3.04 requires a claimant to show:
A. An FEV1 [forced expiratory volume] equal to or less than the
appropriate value in table IV8 corresponding to the claimant’s height
without shoes;
or
B. Episodes of bronchitis or pneumonia with hemoptysis [coughing up
blood – more than blood-streaked sputum] or respiratory failure
(documented according to 3.00C), requiring physician intervention,
occurring at least once every 2 months or at least six times a year. Each
inpatient hospitalization lasting more than 24 hours counts as two episodes,
and an evaluation period of at least 12 consecutive months must be used to
determine the frequency of episodes;
or
C. Persistent pulmonary infection accompanied by superimposed, recurrent
symptomatic episodes of increased bacterial infection occurring at least
once every 6 months and requiring intravenous or nebulization
antimicrobial therapy.
8

Table IV referenced in § 3.04 provides:
Table IV
(Applicable only for evaluation under 3.04A--cystic fibrosis)
Height without shoes
(inches)
60 or less
61-62
63-64
65-66
67-68
69-70
71 or more

Height without shoes (centimeters)
154 or less
155-159
160-164
165-169
170-174
175-179
180 or more
20 C.F.R. pt. 404, subpt. P, app. 1 § 3.04.

8

FEV1 equal to
or less than (L,
BTPS)
1.45
1.55
1.65
1.75
1.85
1.95
2.05

20 C.F.R. pt. 404, subpt. P, app. 1 § 3.04. The regulations also provide that "[s]ome
disorders, such as bronchiectasis, cystic fibrosis, and asthma, can be associated with
intermittent exacerbations of such frequency and intensity that they produce a disabling
impairment, even when pulmonary function during periods of relative clinical stability is
relatively well-maintained." 20 C.F.R. pt. 404, subpt. P, app. 1 § 3.00(A). The
regulations also caution that:
In some situations, most typically with a diagnosis of diffuse interstitial
fibrosis . . ., an impairment may be underestimated on the basis of
spirometry alone. More sophisticated pulmonary function testing may then
be necessary to determine if gas exchange abnormalities contribute to the
severity of a respiratory impairment. Additional testing might include
measurement of diffusing capacity of the lungs for carbon monoxide or
resting arterial blood gases.
Id.
D.

Eligibility for Child DIB and SSI.

Blake alleged disability beginning September 1, 1991 (Tr. 133). In order to be
eligible for child DIB, Blake had to establish that he became disabled before the age of
22 (i.e., in or before early February 2004) (Tr. 133). See 20 C.F.R. § 404.350(a) (child
DIB requirements).
The earliest month in which a claimant can receive SSI benefits is the month
following the month in which his application was filed. See 20 C.F.R. § 416.335. For
purposes of SSI, the issue before the ALJ in this case was whether Plaintiff met the
statutory requirements for disability between March 3, 2008 (the date of Plaintiff’s
application) and January 6, 2010 (the date of the ALJ decision). See Doc. 21 at 3.

9

IV.

Relevant Facts.
1.

Blake’s vocational background.

Blake was born on February 3, 1982. (Tr. 34). He was 26 years old on June 26,
2008, when the ALJ issued his unfavorable decision (Tr. 78, 83). He left school in the 9th
grade (Tr. 36), and last worked in 2003 as a “Painter’s helper in the . . .shipyard” near
Nashville, Tennessee. (Tr. 37). Blake testified that he only worked at that job for two
weeks when he was hospitalized for “pneumonia pseudomonas” and “coughing up
blood.” (Tr. 37). He then returned home. (Tr. 37).
2.

Medical Evidence.

In August 1989, Blake was diagnosed with cystic fibrosis.9 On November13,
1991, Lawrence Sindel, M.D., stated that cystic fibrosis affected both Plaintiff’s
respiratory and gastrointestinal systems, and that he was being treated with antibiotic
medication and dietary supplements. (Tr. 289). Dr. Sindel further stated that, as a chronic
lifelong disease with no cure, it was expected that Blake would “have increased
problems” as he matured. (Tr. 289).10 On November 24, 1994, Dr. Sindel stated that,
when he examined Blake on November 21, 1994, he reported no problems since his last
visit nine months before and that he continued to use antibiotic medication and take his
prescribed enzymes with meals. (Tr. 773). At that time, Dr. Sindel described Blake’s
9

Cystic fibrosis is a disease passed down through families that causes thick, sticky mucus
to build up in the lungs, digestive tract, and other areas of the body. See Cystic fibrosis,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001167/ (last visited May 8, 2012).
10

See also Dr. Sindel’s letter dated January 26, 1993 (“[Blake] has cystic fibrosis [and] will
require life-long intensive therapy for this medical condition.”). (Tr. 290).

10

medical health as “quite good” and reported the following results of Blake’s pulmonary
function tests:
FVC. 2.84 (122% of predicted); FEV1, 2.59 (132% of predicted); FEF25-75%,
3.71 liters per second (156% of predicted); expiratory test time, 5.54
seconds.
(Tr. 773). On February 23,1995, Dr. Sindel noted that on February 20, 1995, Blake
presented with a complaint of “fatigue with dyspnea on exertion,” “cramping-type
abdominal pain” and “loose stools.” (Tr. 772). Dr. Sindel stated that there was “[n]o
specific etiology” for Blake’s fatigue but that his pulmonary functions “continue to be
excellent:
FVC. 2.9 (119% of predicted); FEV1, 2.53 liters (122% of predicted);
FEF25-75%, 3.26 liters per second (131% of predicted); FET100, 6.97 seconds.
(Tr. 772). On May 31, 1995, Dr. Sindel noted that on May 22, 1995, Blake again
presented with a complaint of “fatigue, very persistent since January” and involving
“daytime sleepiness.” (Tr. 771). Blake also reported “some loose stools and abdominal
cramps.” (Tr. 771). Blake’s pulmonary functions were reported to be:
FEC
FEV1
FEF25-75%
EXPtime-test

2.75 liters
2.43 liters
2.04 liters
2.27 seconds

102% of predicted
107% of predicted
111% of predicted

(Tr. 771). According to Dr. Sindel, these test results were “completely normal” and he
opined that “[t]here was nothing to indicate that [Blake] has had any deterioration in his
status since his last visit [on May 22, 1995].” (Tr. 771). Blake again presented to Dr.
Sindel on August 21, 1995, a gap of six months since his previous appointment. (Tr.
769). Although Blake reported no gastrointestinal problems and only “an occasional
11

cough,” Dr. Sindel found that he “had a significant decline in his pulmonary functions
with his first ever set of functions demonstrating airway obstruction.” (Tr. 769). Dr.
Sindel reported the following pulmonary function test results:
FEC
FEV1
FEF25-75%
EXPtime-test

2.63 liters
2.04 liters
1.75 liters
6.75 seconds

98% of predicted
87% of predicted
65% of predicted

(Tr. 769). Dr. Sindel ordered a sputum culture, prescribed “ciprofloxacin,” and declared
an intent to initiate intravenous antibiotic therapy if Blake failed to respond completely to
the oral antibiotic. (Tr. 769). Dr. Sindel saw Blake again on September 11, 1995, and
reported that his “viral respiratory infection” was improving and that, although the
pulmonary function tests “demonstrated mild small airway obstruction,” the results were
“significantly improved when compared with functions measured on 8/21/95.” (Tr. 770).
The pulmonary function test results were as follows:
FVC. 2.78 liters (104% of predicted); FEV1, 2.23 liters (95% of predicted);
FEF25-75%, 2.05 liters per second (76% of predicted); expiratory test time,
6.82 seconds.
(Tr. 770). On August 26, 2000, Blake attempted to return to Dr. Sindel for the first time
“in 4 or 5 y[ea]rs,” because he had a “sore throat, runny nose [and] cough 24/7 –
productive” and had apparently been exposed to a “friend [diagnosed with] pneumonia
[and] bronchitis.” (Tr. 639). The records indicate that Dr. Sindel could not see Blake and
referred him to his “family MD” but noted that Blake went, instead, to the emergency
room. (Tr. 639). On August 29, 2000, Blake was again referred to his “family MD” and
not seen by Dr. Sindel. On August 31, 2000, Blake’s sister phoned Dr. Sindel’s office to

12

report that Blake was “streaking blood in sputum” but was told to have Blake himself
call. (Tr. 639). The office notes for August 31, 2000, indicate that Blake was given an
antibiotic (Ciprofloxin) “yesterday” and would be continued on oral antibiotics. (Tr. 639).
Blake sought treatment for cystic fibrosis and pancreatitis between January 2001
and February 2004 (when he turned 22). On May 1, 2001, Blake presented to Dr. Sindel
with abdominal pain in the “epigastric area.” (Tr. 768). Blake reported that this pain was
occurring every three or four months and typically lasted four days and then resolves.
(Tr. 768). Dr. Sindel noted that Blake’s cystic fibrosis was last evaluated in November,
presumably of 2000, but that such was not done for “many years” prior to November.
(Tr. 768). Dr. Sindel further reported, as part of the patient’s history, that Blake’s
“pulmonary function studies are reportedly normal” and did not indicate that he was
referring to recent tests. (Tr. 768). Dr. Sindel diagnosed pancreatitis, advised Blake to
avoid fatty foods, and prescribed medication (Tr. 768). Dr. Sindel ordered an abdominal
ultrasound which was performed on May 1, 2001, and was normal (Tr. 857).
On June 10, 2002, Blake went to the emergency room, where care providers
assessed him with chest pain secondary to substance abuse11 and muscle strain, provided
him with prescription ibuprofen, and instructed him to discontinue his substance abuse
and consider substance abuse counseling (Tr. 698). On June 14, 2002, Blake presented to
Dr. Sindel, who noted that Blake had been seen in the emergency room 4 days earlier
with chest pain in the left upper thorax and had been diagnosed to have an apical

11

The care providers do not identify the substance they allege Blake abused. (Tr. 698).

13

pneumothorax (collapsed lung). (Tr. 636, 767). Dr. Sindel further noted that Blake had a
job painting Subway stores with latex and oil-based paint, smokes a pack of cigarettes a
day and “sometimes smokes illicit substances [“marijuana”].” (Tr. 636, 767). Dr. Sindel
also noted that Blake experiences abdominal pain every five to six months which “[h]e
suspects that it is pancreatitis [but] takes no therapy for this problem.” (Tr. 767). Dr.
Sindel reported that Blake’s chest x-ray “showed an apical pneumothorax on the left
[and] [s]mall blebs were noted in the lungs bilaterally.” (Tr. 767). Dr. Sindel ordered
blood work and prescribed antibiotics (Ciprio) and vitamin supplements on a regular
basis. (Tr. 635). Pulmonary function tests showed FEV1 ranging from 4.27 (101% of
predicted) to 4.33 (103% of predicted); FEF25-75% ranging from 5.70 liters per second
(124% of predicted) to 6.28 liters per second (136% of predicted); and EXPtime-test ranging
from 4.27 to 4.61 seconds. (Tr. 853).
On June 28, 2002, Blake reported to Dr. Sindel that “he has no significant change
in his respiratory status except that he no longer is having chest pain.” (Tr. 766). Dr.
Sindel specifically noted that Blake had no additional symptoms related to the
pneumothorax and that his pulmonary function tests “were not significantly different
when compared with those of 6/14/02.” (Tr. 766). Those test results showed FEV1
ranging from 4.38 (104% of predicted) to 4.44 (105% of predicted); FEF25-75% ranging
from 5.53 liters per second (120% of predicted) to 6.82 liters per second (148% of
predicted); and EXPtime-test ranging from 4.27 to 5.43 seconds. (Tr. 851). Dr. Sindel also
reported that Blake “has cut his smoking []to 5 cigarettes per day and is looking towards
quitting entirely.” (Tr. 766). Dr. Sindel recommended that he continue his efforts to quit
14

smoking, stay on his dietary supplements and take a trial course of “Ultrase 20 to
determine whether or not it will improve his gastrointestinal symptoms and weight gain.”
(Tr. 766).
On October 14, 2002, Blake presented to Dr. Sindel with chest pain and shortness
of breath (dyspnea). (Tr. 764). Blake also complained about his daily coughing that
produced small amounts of yellow/green sputum, which occasionally contained blood.
(Tr. 764). Blake further complained about “occasional abdominal pain and occasional
mid upper gastric pain” and Dr. Sindel noted that Blake “had mid upper gastric
tenderness” at the time of this examination. (Tr. 764). Dr. Sindel reported the following
pulmonary function test results:
FVC
FEV1
FEF25-75%
Exp. Test Time

5.12 L
100%
3.63 L
109%
5.54 L/s
114%
6.37 seconds

(Tr. 764). Dr. Sindel opined that Blake’s “significant chest pain and dyspnea” was
unlikely to be caused by his lung problems because the pulmonary functions were
“excellent” but were instead caused by gastroesophageal reflux for which “Zantac 150
mg. twice a day” was prescribed. (Tr. 764). On October 28, 2002, Blake presented to
Dr. Sindel with “difficulty breathing with exertion and exhaust quickly” as well as
“constant cough with sputum production [and] difficulty sleeping because of his cough.”
(Tr. 763). Blake denied any gastrointestinal problems but claimed that his energy level
was poor and much worse than in the past, limiting his activity level. (Tr. 763). Dr.
Sindel reported that the chest x-rays showed fibrocystic disease most concentrated in the

15

upper lobes bilaterally.” (Tr. 763). Dr. Sindel further reported that “[a]n exercise
challenge has been scheduled for Mr. Blake to look at the magnitude of his exercise
intolerance and search for an etiology.” (Tr. 763). The results of the exercise challenge
test conducted on November 5, 2002, were reported as follows:
NORMAL SPIROMETRIC VALUES indicate the absence of any
significant degree of obstructive pulmonary impairment and/or restrictive
ventilator defect. Bronchodilator therapy was administered followed by
repeat spirometric testing. Post-bronchodilator testing failed to
demonstrate a significant change in FVC, FEV1, or FEF 25-75. This
indicates that this patient may not benefit from continued bronchodilator
therapy.
(Tr. 846). The specific changes reported pre- and post- bronchodilator included the
following, in pertinent part:12
Pre
FVC (L)
FEV1 (L)
FEF25-75% (L/s)
Exp time (s)

%Prd

Post

%Prd

4.64
4.21
5.38
3.50

90%
96%
111%

4.48
4.13
5.32
3.74

87%
95%
110%

(Tr. 846-847).
On March 9, 2003, Blake was admitted to the hospital for a collapsed lung and had
a chest tube placement and partial lung resection surgery. (Tr. 295). The pathology
report for excised lung tissue revealed acute and chronic bronchitis, bronchopneumonia,
thickening of the lining of the lungs (pleural thickening), and thickening of the tissue
around the air sacs in the lungs (focal interstitial fibrotic changes). (Tr. 295). The

12

These results are chosen from the category designated as “Best” and appear to represent the
best result among the “3” efforts performed for each test. (Tr. 846-847).

16

attending physician reported that Blake was doing well following the surgery and was
“stable” when discharged following removal of the chest tube on March 20, 2003. (Tr.
295). Blake was reported to be ambulating well with no shortness of breath. (Tr. 295).
Blake continued to receive treatment for cystic fibrosis after he turned 22 in
February 2004. On March 16, 2004, he presented to the emergency room with chest pain
and shortness of breath that he described as feeling like it did when he had the
pneumothorax but not as severe. (Tr. 237). Chest x-rays showed hyperinflated lung
fields and “nodular opacities in the upper lobes which raises concerns for possible
tuberculosis exposure.” (Tr. 338).
On May 18, 2004, Blake presented again to the emergency room with “pleuretic
chest pain” said to be “gradually worsening” as well as a dry cough, exertional dyspnea,
chills and fever. (Tr. 339). Blake received not only pain medication but Chest PT
treatment, which he was directed to continue after discharge. (Tr. 339). He was also
instructed to return to Dr. Sindel within the week. (Tr. 339). Chest X-rays taken at this
time were said to be normal. (Tr. 340).
On July 12, 2004, Blake presented to the emergency room and reported chest pain
described as sharp, stabbing pain. (Tr. 342). Care providers diagnosed him with
inflammation of the lining of the pleural cavity surrounding his lungs (viral pleurisy).
(Tr. 342). Blake was treated with antibiotic medication, narcotic pain medication, and an
antihistamine. (Tr. 341). Chest x-rays revealed “subtle infiltrate within the right upper
lobe just above the position of the medium fissure.” (Tr. 819). Blake was subsequently
discharged on antibiotics. (Tr. 342).
17

On July 23, 2004, Blake was hospitalized for five days due to hemoptysis13. (Tr.
367). A chest x-ray taken on his admission, revealed a “subtle increase in the interstitial
markings within the right upper lung fields previously documented 7/12/04.” (Tr. 365,
818). Pulmonary function tests performed both pre- and post-dilator on July 26, 2004,
revealed, in pertinent part:
Pre
FVC (L)
FEV1 (L)
FEF25-75% (L/s)

%Prd

Post

4.49
4.04
4.62

89%
93%
95%

3.69
3.17
3.47

% Change
-18%
-21%
-25%

(Tr. 363). Blake was diagnosed with bronchitis secondary to cystic fibrosis and treated
with antibiotics. (Tr. 366-367). Blake was discharged when the hemoptysis subsided.
(Tr. 367).
On August 7, 2004, Blake went to the emergency room because he was coughing
up blood (Tr. 381). On examination, he was determined not to be in respiratory distress
and had normal breath sounds. (Tr. 383). Care providers determined a primary diagnosis
of hemoptysis, a secondary diagnosis of pleurisy, and a tertiary diagnosis of cystic
fibrosis. (Tr. 388). Blake was given an antibiotic injection and narcotic pain medication,
and subsequently discharged with instructions to see Dr. Sindel within three days. (Tr.
387-388).
On August 12, 2004, Blake was evaluated at Mobile Mental Health for depression
and anxiety and complaints of lack of interest or motivation and no sleep. (Tr. 449). He
13

Hemoptysis or haemoptysis is the expectoration (coughing up) of blood or of blood-stained
sputum from the bronchi, larynx, trachea, or lungs.

18

told the examiner that he was unemployed and in the process of getting disability. (Tr.
450). Blake reported that he used to do construction work but “haven’t been able to work
– get short of breath.” (Tr. 450). He also reported that he would dip snuff, have 7-8
beers over weekend but never during the week, and, before his “probation,” smoked two
marijuana joints per day “to calm my nerves.” (Tr. 449-50).
On October 13, 2004, Blake again went to the Mobile Infirmary Medical Center
emergency room and reported chest wall pain and shortness of breath while working
outside. (Tr. 402). Care providers noted decreased breath sounds (Tr. 404) and opined
that his chest pain was due to a problem in the chest wall (Tr. 408). He was given a
muscle relaxant and ultimately discharged home (Tr. 402-10).
On October 24, 2004, Blake returned to the Mobile Infirmary emergency room
with “frank hemoptysis,” cough, nausea and vomiting, trouble breathing, and chest
tightness. (Tr. 414). He was treated with Levaquin, Phenergan, and Tylenol. (Tr. 413,
415). He was discharged home with a prescription for Xanax. (Tr. 422).
From October 26 - 30, 2004, Blake was hospitalized for pseudomonas bronchitis,
staph aureus bronchitis, hemoptysis, and cystic fibrosis. (Tr. 439-440). Dr. Michael
Hawthorne observed increased purulence of Blake’s sputum, increased sputum amount
with some hemoptysis. (Tr. 751). Blake was placed on two IV antibiotics (Aztreonam
and Cefepime), ordered to take “Pulmozyme nebulized” twice a day and to undergo chest
percussive therapy, as well as physical therapy, daily. (Tr. 752). On October 26, 2004,
Blake’s pulmonary function tests revealed the following, in pertinent part:

19

FVC (L)
FEV1 (L)
FEF 25-75% (L/s)

4.77
4.10
4.61

(Tr. 842). Dr. Hawthorne stated that, in view of Blake’s lack of insurance, an attempt
would be made to “get Social Services involved to see if somehow we can get home
antibiotics paid for [so that they could] place a PICC line and have him receive his
antibiotics at home.” (Tr. 752). Blake was ultimately discharged on IV antibiotic
therapy to be administered at home. (Tr. 753).
On November 8, 2004, Blake presented to Dr. Sindel for a follow-up visit at the
conclusion of two weeks of IV antibiotics. (Tr. 755). Dr. Sindel noted that, although
Blake had significant improvement upon his initial treatment in the hospital, he
continues to have some coughing, occasional sputum dyspnea and chest pain, and
diarrhea, as well as occasional sputum production but no hemoptysis. (Tr. 755).
Pulmonary functions tests were performed and revealed the following, in pertinent part:
FVC
FEV1
FEF 25-75%
Exp. Test Time

4.8 L
95%
4.34 L
101%
6.21 L/s
130%
4.97 seconds

(Tr. 755). Dr. Sindel commented that “Blake’s pulmonary functions have improved
significantly and are now normal.” (Tr. 755). Consequently, Dr. Sindel recommended
that Blake stop taking the IV antibiotics but continue to take his vitamins and return for
reassessment in about three months.
On January 31, 2005, Blake reported two days of dyspnea (labored or difficult

20

breathing resulting in shortness of breath/air hunger), rhinorrhea (a runny nose), a sore
throat, and productive coughing. (Tr. 750). He reported that he experienced dyspnea
when involved in routine activity and even at rest. He also reported that his energy level
was poor and his activities limited. (Tr. 750). On examination, his nose was clear and
he had good breath sounds. Pulmonary function tests were performed and produced the
following results:
FVC (L)
FEV1 (L)
FEF 25-75% (L/s)
Exp. Test Time

3.75
74%
3.26
75%
4.30
90%
4.18 seconds

(Tr. 840). Dr. Sindel stated that, although Blake’s “overall status appears relatively
stable,” “[h]is lung functions have declined suggesting the possibility of restriction.” (Tr.
750). Dr. Sindel prescribed a course of antibiotic medication (Tr. 750).
On March 28, 2005, Blake reported abdominal pain that had been present for the
past day and advised that he had been taking his sister’s prescription pain medication.
(Tr. 749). He further reported shortness of breath when climbing stairs but not with
routine activity. (Tr. 749). On examination, he had good breath sounds; pulmonary
function tests showed FEV1 levels of 3.68. Dr. Sindel noted that Blake’s abdominal
symptoms could be related to pancreatic problems and prescribed narcotic pain
medication (Tr. 749, 838-39). Dr. Sindel recommended an evaluation of Blake’s lipase
and amylase levels as well as an abdominal ultrasound. (Tr. 749). He also provided
Blake with “a couple of days of Lortab to help him with his discomfort.” (749).
The record indicates that Blake presented again to the emergency room on January

21

28, 2007, with complaints of chest pain similar to his past history of spontaneous
pneumothorax (Tr. 464). Blake also complained of a sore throat and productive cough.
(Tr. 462). Chest x-rays showed no acute cardiopulmonary disease. (Tr. 467). Dr. Randy
Lockhart diagnosed sinusitis and discharged Blake with 20 antibiotic pills and
instructions to take the medication twice a day. (Tr. 474).
In October 2007, Blake stated that his activities included performing his own selfcare, cooking and preparing meals, doing some housework and yard work, driving, and
loading and unloading items such as groceries from the car (Tr. 160-65; see also Tr. 20004 (March 2008 statement), 485 (admitting in November 2007 that he could drive, cook,
sweep, wash clothes, care for personal grooming and hygiene, manage personal finances,
and interact with friends and family), 548 (stating in May 2008 that he spent his days
doing laundry and helping his mother, and that he did light yard and housework)).
Blake’s mother provided a similar statement, in which she also mentioned that Blake fed
and watered his dogs and ran errands (Tr. 166-73).
On October 29, 2007, Blake presented to Mark McCutcheon, M.D., for a physical
examination in relation to his claim for Social Security disability benefits. Dr.
McCutcheon summarized Blake’s history as follows:
CHIEF COMPLAINT: Mr. Blake is a 25-year-old white male who was
diagnosed at 8 years of age with cystic fibrosis. He is being followed by
Dr. Sindel. He has recurrent problems with difficulty breathing. He has
also had secondary to cystic fibrosis several past surgical interventions for
bowel blockages. He has also had pseudomonas infections in the lungs. In
2003, he had his right upper lobe removed after spontaneous
pneumothorax. He had a total of 4 of these over a 5- to 6-year time span
before the lobectomy was performed. The patient states that he cannot
maintain any physical activity of any time duration due to getting shortness
22

of breath. The patient states Dr. Sindel said he had greater than 30+ blebs
on both lungs. He has also had some problems with pancreatitis and
arthritis secondary to cystic fibrosis. His last pulmonary function test was
done 12 to 18 months ago at Dr. Sindel’s office but that was not available,
and he had one performed today in the office. Mr. Blake made it through
the 9th grade. He can read and write. He currently lives with his mom. He
has been doing general labor work since 2001. He has been doing oddsand-ends type jobs to get by for the past 1 ½ to 2 years, but his lung
function is steadily getting worse. He does not smoke, do drugs, or drink.
He did lose his sister this past year due to cystic fibrosis and has an
extremely strong family history of cystic fibrosis.
(Tr. 480). Blake told Dr. McCutcheon that he could “lift about 25 pounds but [could] not
go very far with it.” He was not currently taking any medication. On examination, Dr.
McCutcheon found Blake had clear but “very diminished [breath sounds] bilaterally” and
was “mildly short of breath during the examination.” (Tr. 480, 481). Dr. McCutcheon
diagnosed Blake with: 1) Cystic Fibrosis; 2) recurrent shortness of breath with activity; 3)
history of right upper lobectomy; and 4) recurrent pancreatitis/arthritis/bowel blockages
secondary to cystic fibrosis. (Tr. 481). Dr. McCutcheon stated that “I do not understand
why [Blake] could not possibly perform a seated job such as answering the phone or
general secretarial type work, but the problem with that is his decreased education level.”
(Tr. 481). Dr. McCutcheon noted that “Cystic Fibrosis is a deteriorating condition but
can usually be controlled and quality of life can be lengthened with the use of proper
medications.” (Tr. 481).
On November 27, 2007, the Agency sent Blake for pulmonary function testing.
The test results revealed an FVC level of 3.96 L (97% of predicted) and an FEV1 level of
3.59 L (104% of predicted). (Tr. 491).
On March 29, 2008, Blake went to the emergency room for chest pain. He
23

reported that when he got out of bed and took a deep breath, he felt a pop followed by a
sharp pain and shortness of breath similar to his previous pneumothorax. (Tr. 535). On
examination, he was found to have decreased breath sounds but clear in the left lung and
was sent for a chest CT scan. (Tr. 536). Care providers found no evidence of an
infection, prescribed non-steroidal anti-inflammatory medication, and instructed Blake to
follow up with a regular doctor or Stanton Road Clinic and to return to the emergency
room if he had a productive cough, a change in condition, or worsening symptoms (Tr.
535-41).
On May 13, 2008, Blake presented to Dixie Kidd, D.O.14, for a consultative
physical examination in relation to his Social Security claim. Blake said that he did not
have many problems with cystic fibrosis as a child, but “as he was growing up, he’s had
more and more problems,” including shortness of breath, chest pain, and coughing. (Tr.
551). On examination, he had “decreased breath sounds throughout especially in the
right upper lobe” but no rales, rhonchi, or wheezes. (Tr. 551). Dr. Kidd observed that
Blake “appears OK when he’s sitting still but more than likely if he tries to do any kind
of work at all, he’d get short of breath.” (Tr. 552).
On June 24, 2008, the Agency sent Blake for additional pulmonary function
testing. The test results revealed an FVC level of 4.70 L (98% of predicted) and an FEV1
level of 3.94 L (98% of predicted). (Tr. 583).
On August 23, 2008, Blake was again admitted to the emergency room for
14

Dr. Kidd is identified as a Doctor of Osteopathic Medicine (“D.O.”), which is an alternative
degree to an M.D. degree in the United States.

24

shortness of breath that began in the morning and worsened during the day. (Tr. 595).
He also complained of increased nonproductive coughing. (Tr. 600). Blake reported that
he was not taking medication and had not seen Dr. Sindel in at least two years. (Tr. 600).
A chest x-ray showed no evidence of pneumothorax. Care providers diagnosed cystic
fibrosis exacerbation, treated him with a bronchodilator, non-steroidal anti-inflammatory
medication, and morphine, and instructed him on discharge to follow up at Stanton Road
Clinic (Tr. 595-610).
Blake did not present to Stanton Road Clinic until November 5, 2008, when he
reported shortness of breath, chest pain, and a “mostly dry” cough, and admitted that he
was not taking any medication (Tr. 618). Although the medical notes are difficult to
decipher, it appears that Blake was diagnosed with “flu 2 months” and given a “flushot.”
(Tr. 618).
Blake returned to Stanton Road Clinic on February 4, 2009, with chest pain,
difficulty sleeping, coughing with little sputum production, and wrist pain for which he
was referred to orthopedics. (Tr. 617).

On February 9, 2009, Blake was seen by Dr.

Frederick N. Meyer for treatment of a fractured wrist. (Tr. 614-616). Blake presented
again to Stanton Road Clinic on February 11, 2009, complaining of anxiety and difficulty
sleeping (Tr. 612-613). Prescriptions for Prozac and Ambien were given and Blake was
referred back to Mobile Mental Health. (Tr. 613).
On May 6, 2009, a doctor at Stanton Road Clinic completed a check-the-box style
form titled “Assessment To Do Work-Related Activities,” opining that Blake had “No
impairment” in any of the activities identified on the checklist, such as “activities of daily
25

living or “social functioning.” (Tr. 625).
3.

Blake’s Testimony.

At an administrative hearing held on December 14, 2009, Blake testified he
had not worked since 2003 (when he was employed as a painter’s helper in a shipyard)
and that he lived on his wife’s food stamps and child support checks (Tr. 37-38). Blake
asserted that he was unable to work due to “being . . . in and out of the hospital all the
time” (Tr. 40). Blake testified concerning his approximately two week hospitalization and
lung surgery in 2004 (Tr. 41-42). Although he could not recall the dates, Blake also
testified to a second hospitalization for “about a week” and several emergency room
visits. (Tr. 41-43).
Blake stated that, although the doctors had prescribed several medications, he was
unable to afford them. (Tr. 49). He noted that, from time to time he uses an inhaler,
Albuterol, but the one he had at the time of the hearing had expired in October. (Tr. 4950). Blake also testified that he was taking Paxil for his “chemical imbalance,” anxiety
and sleeping problems (Tr. 44) but only had a few left from those his mother helped him
get. (Tr. 49).
Blake further testified that his activities are limited because “I get short winded
easily” and, if he tries to do anything stressful, “I get the tightness in my chest.” (Tr. 45).
He explained that :
[S]ay, if I try to get out in the yard and pick up, or do something like that
for a little while, within five minutes or so I’m having to sit back down,
catch my breath, then wait another 10, 15 minutes or so and try to pick
myself up, basically push myself to do things.

26

(Tr. 45). Blake testified that he was “basically a homebody” and, “[i]f I go anywhere, I
go two miles up the road and go visit with my mama a little bit, and then just come back
to the house.” (Tr. 47). Blake noted that he does drive but most of the time lets his wife
drive. (Tr. 46). Blake admitted that he has not looked for work because “I try to get out
and do, and I just, I can’t” and because, if “I push myself too hard, . . . I end up back into
the emergency room again.” (Tr. 47).
4.

Vocational Expert’s Testimony.

Doug Miller, the Vocational Expert (VE) testified that the following jobs were
available to Blake: 1) “poultry eviscerator, working on a line”;15 2) “cafeteria attendant”
with a DOT code 311.677-014, classified as light, unskilled, with SVP level of two and
listed nationally at 102,000 jobs; 3) “microfilm document preparer” with a DOT code
249.587-018, classified as sedentary and listed nationally at 148,000 jobs; 4)
“surveillance monitor” with a DOT code 379.367-010, classified as sedentary, unskilled,
and listed nationally at 102,000 jobs; and 5) “information clerk” with a DOT code
237.367-018, classified as sedentary, semiskilled, with SVP level of three and listed
nationally at 115,000 jobs. (Tr. 56-58). Blake presents no challenge to either the ALJ’s
hypothetical or the VE’s testimony.
5.

ALJ’s Decision.

The ALJ found at step two that Blake’s cystic fibrosis and history of pancreatitis
were severe impairments, but determined at step three that Plaintiff had not met his
15

This job was essentially rejected by the ALJ because of the odor. (Tr. 56-57). The ALJ
immediately asked “[i]s it clean?” and commented “smells bad – wouldn’t it?” (Tr. 56).

27

burden to show that his impairments or combination of impairments “meets or medically
equals one of the listed impairments at 20 C.F.R. pt. 404, subpt. P, app. 1.” (Tr. 22,
Finding 4). The ALJ specifically declared that he relied solely on his determination that
“based on the totality of the medical and nonmedical evidence or record, the claimant’s
impairments do not meet or medically equal the criteria of Listings 4.00 and 5.00.” (Tr.
23, Finding 4).
The ALJ further concluded that “the claimant has the residual functional capacity
to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and
416.967(b), in function by function terms (SSRs 83-10 and 06-8p), with certain
nonexertional restrictions associated with that level of exertion [and] claimant’s specific
physical capabilities during the period of adjudication have been the ability to work in an
environment that does not require even moderate exposure to dust, fumes, odors, gases,
etc.” (Tr. 23, Finding 5). The ALJ predicated his conclusion on the following, in
pertinent part:
The claimant said he cannot work due to being in and out of the hospital so
much. When asked specifically about hospital visits, the claimant said he
went to the emergency room about a month and half ago, but was sent
home because his lungs “looked good.” The claimant said he has been to
the emergency room several times due to chest pains and was also sent
home. The claimant said the last time he was in the hospital for treatment
was for lung surgery in 2004. He said he was also in Mobile Infirmary
about 2 years ago for pneumonia. He is currently treated at the Stanton
Road clinic and has been going there for the past year.
• • •
In terms of claimant’s alleged cystic fibrosis, the last time he was actually
hospitalized was in 2004 for his lung surgery. The claimant has not
generally received the type of medical treatment one would expect for a
28

totally disabled individual. Although the claimant has received treatment
for the allegedly disabling impairment, that treatment has been essentially
routine and/or conservative in nature. The claimant did undergo surgery for
the alleged impairment in 2004, which certainly suggests that the symptoms
were genuine. While that fact would normally weigh in the claimant’s
favor, it is offset by the fact that the record reflects that the surgery was
generally successful in relieving the symptoms. Despite the complaints of
allegedly disabling symptoms, there have been significant periods of time
since the alleged onset date during which the claimant has not taken any
medication for those symptoms.
The medical records indicate that he was hospitalized three times between
March, 2003 and October, 2004. The Claimant was treated from March 920, 2003, at USA Medical Center for spontaneous pneumothorax and had a
chest tube placement . . . was scheduled for video assisted Thoracoscopy
with mechanic pleurodesis, which was done without complication. The
pathology report of excised lung tissue revealed acute and chronic
bronchitis, bronchopneumonia, focal interstitial fibrotic changes, and
pleural thickening. After this surgery, the claimant did well with no air
leaks. The chest tube was removed on March 20, 2003, and the claimant
was ambulating well with no shortness of breath. (Exhibit D3F). The
claimant was later admitted from July 23-29, 2004, for treatment of
hemoptysis secondary to cystic fibrosis. The claimant was placed on
Ciprofloxacin, and eventually his hemoptysis subsided. (Exhibit D8F).
Finally, the claimant was hospitalized at Mobile Infirmary Medical Center
from October 26-30, 2004, for pseudomonas bronchitis, staph aureus
bronchitis, hemoptysis, and cystic fibrosis. . . . The claimant was started on
Aztreonam and Tobramycin, and his symptoms resolved. The claimant
also reported that his dyspnea and malaise had improved. (Exhibit D12F).
• • •
The claimant testified that he is in and out of the hospital; yet, as noted
above, he is typically treated and released. The record contains seven
emergency room visits in which the claimant was released after
improvement with treatment. [The ALJ summarizes Blake’s emergency
room visits on July 12, 2004, August 7, 2004, October 13, 2004, October
24, 2004, January 28, 2007, March 29, 2008 and August 23, 2008.].
(Tr. 23-26). The ALJ also addressed the reports of two consultative physical
examinations. In the first, conducted by Dr. Mark McCutcheon on October 29, 2007, the

29

ALJ noted that “[d]uring the review of systems, the claimant was positive for shortness of
breath with activity and pleurisy.” (Tr. 26, referring to Tr. 480). The ALJ further noted
that:
During the physical examination, Dr. McCutcheon noted that the claimant’s
lungs were very diminished bilaterally, but clear. . . . Dr. McCutcheon
diagnosed the claimant with cystic fibrosis, recurrent shortness of breath
with activity, history of right upper lobectomy, and recurrent
pancreatic/arthritis/bowel blockages secondary to cystic fibrosis. . . . He did
get mildly short of breath during the examination.
(Tr. 26, referring to Tr. 480-481). The ALJ nonetheless discounted Dr. McCutcheon’s
opinion that “[a]t this time, I am unsure of where Mr. Blake would be properly placed in
the workforce,” on the grounds that this opinion was based solely on Dr. McCutcheon’s
reference to Blake’s “9th grade education” and the jobs identified by the vocational expert
who is said to have taken “claimant’s limited educational background” into consideration.
(Tr. 27, referring to Tr. 481 as well as Tr. 56-60).
In the second consultative examination performed by Dixie Kidd, DO, on May 13,
2008, the ALJ acknowledged that Dr. Kidd reported that, “[d]uring the physical
examination, the claimant had decreased breath sounds throughout, especially in the right
upper lobe”; that “claimant has cystic fibrosis, frequent pneumothoraces, and frequent
pancreatitis”; and that “claimant appears ‘okay’ when he’s sitting still; but more than
likely if he tried to do any kind of work at all, he would get short of breath.” (Tr. 26-27,
referring to Tr. 551-552). The ALJ, however, discounted Dr. Kidd’s opinion that any
work activity would result in shortness of breath on the grounds that:
The opinion expressed is quite conclusory, providing very little explanation
of the evidence relied on in forming the opinion. Dr. Kidd’s physical
30

examination does not support such a finding, and it is inconsistent with his
treatment history.
(Tr. 27).
V.

Analysis.
The ALJ did not err by failing to conclude that Blake was disabled
under Listing 3.04.

The Listing at issue in this case is 3.04 for cystic fibrosis. It is important to note that
“[t]he Secretary explicitly has set the medical criteria defining the listed impairments at a
higher level of severity than the statutory standard.” Sullivan v. Zebley, 494 U.S. 521,
532 (1990). “The listings define impairments that would prevent an adult, regardless of
his age, education, or work experience, from performing any gainful activity, not just
‘substantial gainful activity’.” Id., citing 20 CFR § 416.925(a) (1989) (purpose of listings
is to describe impairments “severe enough to prevent a person from doing any gainful
activity”); SSR 83-19, at 90 (listings define “medical conditions which ordinarily prevent
an individual from engaging in any gainful activity”). The distinction is made between
the Listing’s level of severity and the statutory standard because “the Listings were
“designed to operate as a presumption of disability that makes further inquiry
unnecessary.” Id.; see also Bowen v. Yuckert, 482 U.S. 137, 141 (1987)(if an adult's
impairment “meets or equals one of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is conclusively presumed to be
disabling, the evaluation proceeds to the fourth step.”). Each impairment categorized in
the Listings at 20 C.F.R. pt. 404, subpt. P, app. 1, is defined in terms of several specific
medical signs, symptoms, or laboratory test results. Zebley, 493 U.S at 530. “For a
31

claimant to show that his impairment matches a listing, it must meet all of the specified
medical criteria [and] [a]n impairment that manifests only some of those criteria, no
matter how severely, does not qualify.” Id.
Blake argues that the ALJ erred when he failed to properly evaluate his cystic
fibrosis and associated impairments. According to Blake, "[t]he pulmonary
manifestations of cystic fibrosis should be evaluated under 3.04 of the Listings of
Impairments" and, in this case, "[t]he ALJ/Commissioner . . . evaluated [plaintiff's] cystic
fibrosis under 4.0 and 5.0 of the Listings which disregarded the plaintiff's respiratory
problems." (Doc. 19 at 4). Blake further contends that the ALJ erred because only the
“non-pulmonary aspects of cystic fibrosis should be evaluated under the digestive body
system [analysis discussed in] 5.00 of the Listings of Impairments.” (Doc. 19 at 4).
Blake argues that he “should be awarded benefits in accordance with 3.04 of the Listing
of Impairments without further delay.” (Doc. 19 at 5).
Similarly, to the extent Blake contends that the ALJ did not consider the combined
effects of his impairments, the undersigned agrees with the Commissioner that the ALJ’s

conclusion that Blake’s impairments “did not meet or medically equal any of the
listings,” “was sufficient articulation of the ALJ’s step three finding.” (Doc. 21 at 14).
See Gray ex rel. Whymss v. Comm’r of Soc. Sec., 454 F. App’x 748, 750 (11th Cir. 2011)
(“Although the ALJ did not explicitly cite Listing 112.05D, he found that [the claimant]
did not meet one of the Listings, and he properly cited the three-step process.”), citing
Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986)). It is Blake who failed to
meet his burden to prove that his impairments met or medically equaled the requirements
32

of Listing 3.04 inasmuch as:
Even when Plaintiff’s symptoms were exacerbated, pulmonary function tests were
well above 1.95 (Tr. 363, 491-92, 583-84, 755, 764-65, 838-41, 846-48, 851-54).
The record does not show episodes of bronchitis or pneumonia with hemoptysis
or respiratory failure occurring at least once every two months or at least six times
a year within a continuous 12 month period. Nor does the record show persistent
pulmonary infection accompanied by superimposed, recurrent symptomatic
episodes of increased bacterial infection occurring at least once every six months
and requiring intravenous or nebulization antimicrobial therapy.
(Doc. 21 at 12-13).

According to Blake, “the ALJ relied only upon the Listings of 4.0 and 5.0

in his decision making process.” (Doc. 19 at 5, citing Tr. 22-23). However, Blake asserts no
specific error by the ALJ in connection with his conclusion that Blake did not satisfy Listings 4.0
and 5.0. Consequently, Blake’s sole contention is that he is disabled because he satisfies Listing
3.04, a contention which is not supported by the record.

To the extent that Blake argues that the ALJ should have found that he met Listing
3.04 on July 26, 2011, when his pulmonary function test result revealed an FEV1 of 1.30
Liters (Doc. 19 at 5, citing Tr. 286), it is clear that this evidence was never presented to
the ALJ and has no bearing on whether Blake satisfied the Listing 3.04 criteria on or
before the date of the ALJ’s January 2010 decision. See Wilson v. Apfel, 179 F.3d 1276,
1279 (11th Cir. 1999) (recognizing that courts “review the decision of the ALJ as to
whether the claimant was entitled to benefits during a specific time period, which period
was necessarily prior to the date of the ALJ’s decision,” and holding that, while evidence
regarding a claimant’s condition after the ALJ’s decision “may be relevant to whether a
deterioration in [the claimant’s] condition subsequently entitled her to benefits, it is
simply not probative of any issue in this case”). Blake points to no other evidence in the
record that supports his contention that he satisfied Listing 3.04 prior to the ALJ’s

33

January 2010 decision.16 Consequently, the ALJ did not err in this manner and his
decision must, therefore, be affirmed.
CONCLUSION
For the reasons stated above, it is ORDERED that the decision of the
Commissioner of Social Security denying plaintiff’s benefits be and is hereby
AFFIRMED.
DONE this 3rd

day of December, 2012.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

16

In his “Post Hearing Brief” (doc. 28), Blake argues that the letter written by Dr. Tung Tran on
(Tr. 285) on May 5, 2009, should have been considered by the Appeals Council and should be considered
by this Court because it was available to the ALJ and omitted only due to “a clerical error.” (Doc. 28 at
4). There is nothing, however, in Dr. Tran’s letter that would support a contention that Blake satisfied
Listing 3.04. Dr. Tran states that, based on his treatment of Blake since February 2009, Blake “is
currently managed on multiple medications.” (Tr. 285). Although Dr. Tran opines that Blake “will have
continued CF exacerbations throughout his lifetime that may be completely disabling and limit his ability
to perform physically demanding activities,” he clearly states that “[Blake] is currently stable.” (Tr. 285,
emphasis added).

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