Taylor v. Astrue

Filing 22

MEMORANDUM AND OPINION entered.. Upon consideration of theadministrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out. Signed by Magistrate Judge Bert W. Milling, Jr on 7/26/2012. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

GRIBRITTER TAYLOR, on behalf of :
K.T., a minor,
:
:
Plaintiff,
:
:
vs.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,:
:
Defendant.
:

CIVIL ACTION 11-0710-M

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 42 U.S.C. § 1383(c)(3),
Plaintiff1 seeks judicial review of an adverse social security
ruling which denied a claim for Supplemental Security Income for
children (hereinafter SSI) (Docs. 1, 12).

The parties filed

written consent and 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. 21).
waived in this action (Doc. 20).

Oral argument was

Upon consideration of the

administrative record and the memoranda of the parties, it is

1

Though this action was brought by Gribritter Taylor on behalf of
her son, K.T., the Court will refer to the child as the Plaintiff.

1

ORDERED that the decision of the Commissioner be AFFIRMED and
that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983), which must be supported by substantial
evidence.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires "that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance."

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984).
At the time of the administrative hearing, Plaintiff was
two years old (Tr. 32).

In claiming benefits, Taylor alleges

disability due to asthma, acid reflux, status post removal of
extra toes and fingers, and a communication disorder (Doc. 13).
The Plaintiff filed a protective application for SSI on
December 9, 2009 (Tr. 95-97; see also Tr. 11).

Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)
who determined that although Taylor had severe impairments, he
was not disabled (Tr. 11-25).

Plaintiff requested review of the

hearing decision (Tr. 5-7) by the Appeals Council, but it was
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denied (Tr. 1-4).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Taylor alleges

(1) The ALJ improperly relied on the opinion of a non-

examining physician; (2) the ALJ did not properly consider the
combination of his impairments; and (3) the ALJ failed to
consider the frequency of treatment and functional equivalence
under Listing 103.03 (Doc. 12).
denies—these claims (Doc. 15).

Defendant has responded to—and
The relevant evidence follows.

Records from Marengo Orthopaedics, dated June 26, 2009,
reveal that Plaintiff was born with an extra digit on each of
both hands and feet (Tr. 124-26).

The extra fingers had already

been removed; plans were made for removal of the extra toes.
Records from the Bryan W. Whitfield Memorial Hospital
demonstrate that the extra fingers on each hand were excised on
February 3, 2009, the day he was born (Tr. 208, 219; see
generally Tr. 127-219).

On April 12, Taylor was seen for

congestion and wheezing (Tr. 202-09).

On April 14, Plaintiff

was admitted for bronchitis, shortness of breath, dehydration,
and vomiting; the infant had good muscle mass bilaterally and
full range of motion of all joints (Tr. 187-201).

A chest x-ray

was unremarkable and the infant was discharged two days later,
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markedly improved, with a diagnosis of pneumonitis and
esophageal reflux (Tr. 187; cf. Tr. 190).

On April 25, 2009,

Plaintiff was seen for mild congestion and a cough (Tr. 180-86).
Taylor was admitted on to the hospital May 27 for two nights for
treatment of pneumonitis and strep throat; he was discharged in
markedly improved condition (Tr. 168-79).
was treated for thrush (Tr. 158-67).

On June 16, Plaintiff

On July 16, the extra toe

on each of Taylor’s feet was surgically removed (Tr. 128-157).
On May 20, 2009, Dr. Steve Helm at the Allergy and Asthma
Center of Tuscaloosa examined Plaintiff for a cough and chest
congestion; his diagnosis was abnormal chest sounds and
respiratory abnormalities (Tr. 233-35).

On August 21, the

doctor noted that it was reported that the prescribed medicine
at the last visit had worked well for Taylor; the child’s
diagnosis was the same along with the addition of milk as
causing anaphylaxis (Tr. 230-32).

On December 28, Dr. Helm

wrote, on a prescription notice, the following:

“To my

knowledge, there is no legitimate reason for claiming a
disability.

You may suspect fraud” (Tr. 229).

Records from Dr. Maurice Fitz Gerald demonstrate that
Taylor was seen on twenty-two occasions between February 12 and
December 23, 2009 (Tr. 236-302).

On March 3, Plaintiff had a
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normal chest x-ray (Tr. 284); two weeks later, he had otitis
media of the left ear and an upper respiratory infection (Tr.
277-80).

An April 14 examination for pneumonia led to a

hospitalization (Tr. 272-73).

At a follow-up exam a week later,

Taylor was diagnosed to have reactive airway disease and GERD
(Tr. 270-71).

On April 28, examination results led to the same

diagnosis in addition to asthma; medications were changed (Tr.
267-69).

On May 15, it was first noted that Plaintiff was

overweight (Tr. 261-62).

On October 20, Taylor was seen for an

exacerbation of his asthma (Tr. 242-44).

On December 23,

Plaintiff was seen for reactive airway disease and an upper
respiratory infection (Tr. 237-39).
On January 20, 2010, Dr. Peter S. Bertucci, a non-examining
physician, reviewing the medical evidence of record at that
time, indicated that Taylor had no limitations except for less
than marked limitations in his health and physical well-being
(Tr. 303-08).
On August 3, 2009, Dr. Anthony L. Tropeano stated that
Plaintiff was doing well in the examination following the
excision of his two toes (Tr. 313-15).
On February 24, 2010, Dr. Helm noted that Plaintiff had no
wheezing or labored breathing, though he did have an occasional
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cough; the diagnosis was mild asthma (Tr. 317-20).
On March 17, 2010, records from the Bryan Whitfield
Memorial Hospital show that Taylor was treated for a rash and
pain on urination (Tr. 323-34).
On February 16, 2010, Plaintiff was seen at the Fitz-Gerald
Perret Clinic for coughing, congestion, vomiting, and diarrhea;
it was noted that he was in no acute distress and that he had
good range of motion in all extremities (Tr. 339-41).

Taylor

was diagnosed to have GERD, asthma and lactose intolerance.

On

March 19, he was seen for a cough and congestion; Plaintiff was
diagnosed with pharyngitis and pneumonitis (Tr. 336-38).
On November 3, 2010, records from the Children’s
Rehabilitation Services state that although his mother stated
that Taylor had intermittent pain here and there, he ambulated
well and he was developmentally normal; no intervention was
necessary (Tr. 343).
Plaintiff was seen at Bryan Whitfield Memorial Hospital on
June 13, 2010 for vomiting and diarrhea; he was diagnosed to
have gastroenteritis (Tr. 353-60).

On November 20, Taylor was

seen for an upper respiratory infection (Tr. 345-52).
Records from the Fitz-Gerald Perret Clinic show that
Plaintiff was seen on April 22, 2010 for a follow-up
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examination; though he had a heat rash, he was meeting
milestones and appeared to be a well baby (Tr. 382-86).

On July

12, Taylor was examined for coughing and wheezing (Tr. 380-81).
On August 19, Plaintiff was seen for a well-baby assessment; he
demonstrated normal eighteen-month milestones, but was diagnosed
to have asthma, esophageal reflux, and an abrasion or friction
burn on his left great toe (Tr. 375-79).

On October 4, Taylor

was seen for lymphadenopathy, asthma with acute exacerbation,
and an upper respiratory infection (Tr. 372-74).

On November

15, he was suffering from pharyngitis, pneumonitis, and asthma
(Tr. 367-69).

Plaintiff had a cough, congestion, and a runny

nose on January 3, 2011 and was diagnosed with allergic rhinitis
and asthma with acute exacerbation (Tr. 34-66).
Records from the Cahaba Early Intervention Services show
that, on July 20, 2010, Plaintiff was noted to have responded
appropriately to 3/3 items of sound presented and 8/8 visual
stimuli (Tr. 416; see generally Tr. 391-418).

Concerns were

shown for his communication development in that he did not
respond to different tones of a person’s voice, did not follow
commands without a visual cue, and did not use at least ten
words; there was also concern for his adaptive development in
that he did not fuss when his diaper needed changing, did not
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sleep all night, and did not cooperate in dressing and
undressing (Tr. 417-18).

Over the next ten months, Cahaba

engaged Taylor in different activities, e.g., coloring, singing,
putting puzzles together, for guidance in following directions
and learning different physical skills (Tr. 392-415, 420-23).
Plaintiff’s mother reported that he was using more words and was
following directions better on December 13, 2010 (Tr. 402).

On

April 18, 2011, Taylor’s mother reported that he was following
directions better and was using words and phrases (Tr. 422).
Records from the Fitz-Gerald Perret Clinic show that, on
March 3, 2011, Plaintiff was noted to have allergic rhinitis and
asthma with acute exacerbation (Tr. 446-48).

Four days later,

Taylor was seen as a follow-up for fluid in his ears; he was
noted to have abnormal movement in all extremities (Tr. 441-45).
Plaintiff was diagnosed to have otitis media, asthma, and an
upper respiratory infection.

On March 17, Taylor had wheezing

and rhonchi bilaterally; he was determined to have pharyngitis,
pneumonitis, and otitis externa (Tr. 438-40).

On April 12, he

had allergic rhinitis, asthma with acute exacerbation, and an
upper respiratory infection (Tr. 433-34); six days later, he had
pharyngitis and pneumonitis (Tr. 430-32).

On May 18, the

diagnosis was asthma, GERD, and an upper respiratory infection
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(Tr. 425-29); he was in no acute distress, but, again, abnormal
movement of all extremities was noted.
Plaintiff claims that the ALJ improperly relied on the
opinion of a non-examining physician, Dr. Bertucci, asserting
that he did not have the entire record to review before giving
his opinion (Doc. 12, pp. 5-6).

The Court notes that the

opinion of a nonexamining physician Ais entitled to little weight
and taken alone does not constitute substantial evidence to
support an administrative decision.@

Swindle v. Sullivan, 914

F.2d 222, 226 n.3 (11th Cir. 1990) (citing Broughton v. Heckler,
776 F.2d 960, 962 (11th Cir. 1985).
In his decision, the ALJ summarized the opinion of Dr.
Bertucci (Tr. 17), along with the rest of the evidence, in
finding that Taylor was not disabled.

Plaintiff correctly notes

that the ALJ, in discussing the six functional equivalence
domains, cites the evaluation form completed by Bertucci in four
of the six domains as support for his opinions (Doc. 12, pp. 56; cf. Tr. 20-25, 303-08).
The Court, nevertheless, notes that Plaintiff has failed to
point to evidence which contradicts the conclusions of either
the ALJ or Dr. Bertucci (Doc. 12, pp. 5-6).

Though it would be

easy to note the near-mirror image of the ALJ’s conclusions with
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the opinions of Bertucci as justification for discounting the
ALJ’s determination, the Court declines to do so as the other
evidence of record supports the ALJ’s conclusions.
In connection with this claim, Plaintiff has cited Social
Security Ruling 96-6p (Doc. 12, p. 5).

The Court notes the

following language from that ruling:

In appropriate circumstances, opinions
from State agency medical and psychological
consultants and other program physicians and
psychologists may be entitled to greater
weight than the opinions of treating or
examining sources. For example, the opinion
of a State agency medical or psychological
consultant or other program physician or
psychologist may be entitled to greater
weight than a treating source’s medical
opinion if the State agency medical or
psychological consultant's opinion is based
on a review of a complete case record that
includes a medical report from a specialist
in the individual's particular impairment
which provides more detailed and
comprehensive information than what was
available to the individual's treating
source.

Social Security Ruling 96-6p.

Plaintiff has specifically

directed the Court’s attention to the language in the ruling
stating that the opinion of the non-examining physician be based
on a review of the complete case record.

Taylor specifically

argues that, “[a]t best, he could have reviewed exhibits 1F
10

through 5F.

After he submitted his form, ten additional

exhibits totaling 149 pages were added, with medical records
dated through May 2011 and evaluation and treatment from Cahaba
Early Intervention Services” (Doc. 5, p. 6).
The Court has reviewed the record evidence submitted after
Dr. Bertucci’s form opinion was completed.

As noted earlier,

the Court found that the other evidence of record supported the
ALJ’s conclusions; at the very least, the other evidence did not
contradict those opinions.

Taylor’s argument otherwise is

without merit.
Plaintiff next claims that the ALJ did not properly
consider the combination of his impairments as he is required to
do (Doc. 12, pp. 6-7).

It is true that "the Secretary shall

consider the combined effect of all of the individual's
impairments without regard to whether any such impairment, if
considered separately, would be of such severity."
1382c(a)(3)(G).

42 U.S.C. §

The Eleventh Circuit Court of Appeals has noted

this instruction and further found that "[i]t is the duty of the
administrative law judge to make specific and well-articulated
findings as to the effect of the combination of impairments and
to decide whether the combined impairments cause the claimant to
be disabled."

Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
11

1984); see also Reeves v. Heckler, 734 F.2d 519 (11th Cir.
1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
In the ALJ's findings, he lists Plaintiff's severe
impairments and concludes by saying that he “does not have an
impairment or combination of impairments that meets or medically
equals one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. 416.924, 416.925 and 416.926)"
(Tr. 14).

This specific language has been upheld by the

Eleventh Circuit Court of Appeals as sufficient consideration of
the effects of the combinations of a claimant's impairments.
Jones v. Department of Health and Human Services, 941 F.2d 1529,
1533 (11th Cir. 1991) (the claimant does not have “an impairment
or combination of impairments listed in, or medically equal to
one listed in Appendix 1, Subpart P, Regulations No. 4").
The Court notes Taylor’s citation to Seventh Circuit law
which found that this type of “‘boilerplate’ language is
‘meaningless and unhelpful to a reviewing court.’”

(Doc. 12,

pp. 7-8) (citing Bjornson v. Astrue, No. 11-2422 (7th Cir.
January 31, 2012) and Smith v. Astrue, No. 11-2838 (7th Cir.
March 12, 2012)).

The Court has reviewed those cases.

The

Court first notes that Bjornson and Smith both deal with the
issue of the ALJ’s discounting of the Plaintiff’s testimony.
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See Bjornson v. Astrue, 671 F.3d 640, 644-47 (7th Cir. 2012);
Smith v. Astrue, 467 Fed.Appx. 507, 511 (7th Cir. 2012).

As

such, these cases are not applicable to this discussion of the
ALJ’s consideration of the combination of Taylor’s impairments.
Furthermore, Seventh Circuit law would not take priority, in
this Court, over established Eleventh Circuit precedent.
Plaintiff’s claim is without merit.
Finally, Taylor has asserted that the ALJ failed to
consider the frequency of treatment and functional equivalence
under Listing 103.03 (Doc. 12).

More specifically, Plaintiff

asserts the following:

Listing 103.03B provides for a finding
of disability with asthma attacks 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 counts as two attacks.
The ALJ did not discuss the frequency of
treatment required by K.T.
During the year 2009, K.T. had 27
doctor visits, 4 emergency room visits, and
2 inpatient treatments. During the year
2010, K.T. had 10 doctor visits, 3 emergency
room visits, and began receiving home visits
from early intervention. Through the first
five months of 2011, K.T. had 9 doctor
visits and multiple home visits from early
intervention. The ALJ erred in failing to
discuss whether the frequency of medical
treatment met or equaled Listing 103.03B.

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(Doc. 12, p. 8).
The Court notes that Listing 103.03B requires that a
claimant have asthma attacks

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.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 103.03B
(2012).

Listing 3.00C, explaining attacks, states as follows:

When a respiratory impairment is
episodic in nature, as can occur with
exacerbations of asthma, cystic fibrosis,
bronchiectasis, or chronic asthmatic
bronchitis, the frequency and intensity of
episodes that occur despite prescribed
treatment are often the major criteria for
determining the level of impairment.
Documentation for these exacerbations should
include available hospital, emergency
facility and/or physician records indicating
the dates of treatment; clinical and
laboratory findings on presentation, such as
the results of spirometry and arterial blood
gas studies (ABGS); the treatment
administered; the time period required for
treatment; and the clinical response.
Attacks of asthma, episodes of bronchitis or
pneumonia or hemoptysis (more than bloodstreaked sputum), or respiratory failure as
referred to in paragraph B of 3.03, 3.04,
14

and 3.07, 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.
Hospital admissions are defined as inpatient
hospitalizations for longer than 24 hours.
The medical evidence must also include
information documenting adherence to a
prescribed regimen of treatment as well as a
description of physical signs. For asthma,
the medical evidence should include
spirometric results obtained between attacks
that document the presence of baseline
airflow obstruction.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 3.00C (2012).
In responding to this claim, Defendant has argued that the
medical evidence does not document the “intensive treatment”
defined in the Listing (Doc. 15, p. 12).

For example, one of

the hospitalizations referenced by Taylor was not for asthma,
but for pneumonitis and esophageal reflux (Tr. 187); though the
Government argues that the second hospitalization also failed to
be for asthma, the discharge page clearly references asthma
among the diagnoses (Tr. 168; see generally Tr. 168-79).
Defendant is correct, though, in pointing out that the medical
intervention generally only required a medication change and did
not necessitate “intravenous bronchodilator or antibiotic
administration or prolonged inhalational bronchodilator therapy”
15

contemplated in Listing 3.00C.

Additionally, ABGS studies and

spirometric test results are not present in the record to
document the extreme impairment asserted by Taylor.

Though

Plaintiff has brought forth a record of repeated medical
assistance in this action, it does not support the intensity of
intervention required in Listing 103.03B.

As such, the Court

finds no merit in Taylor’s assertion that the ALJ did not
properly consider the frequency of treatment and functional
equivalence under Listing 103.03.
Plaintiff raises three claims in bringing this action.
are without merit.

All

Upon consideration of the entire record, the

Court finds "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
at 401.

Perales, 402 U.S.

Therefore, it is ORDERED that the Secretary's decision

be AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th
Cir. 1980), and that this action be DISMISSED.

Judgment will be

entered by separate Order.
DONE this 26th day of July, 2012.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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