Hatch v. Commissioner of Social Security

Filing 26

OPINION AND ORDER: This case is REMANDED to the Commissioner of Social Security for further proceedings consistent with this Opinion and Order. Signed by Judge William C Lee on 3/5/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CHRISTINA HATCH on behalf of
CRISTIAN HATCH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:13cv119

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Supplemental
Security Income (SSI) Child’s Disability as provided for in the Social Security Act. 42 U.S.C.
§416(I); 42 U.S.C. §423; 42 U.S.C. §§ 1382, 1382c(a)(3). Section 205(g) of the Act provides,
inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript
of the record including the evidence upon which the findings and decision complained of are
based. The court shall have the power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without
remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to
any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).
The law provides that a child will be considered disabled if he has a “medically
determinable physical or mental impairment, which results in marked and severe functional
limitations.”. 42 U.S.C. §1382c(a)(3)(C)(1). A physical or mental impairment is "an
impairment 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). It is well established that the burden of proving entitlement to disability insurance
benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.
Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The claimant was born on August 30, 2005. Therefore, he was a
preschooler on October 15, 2009, the date the application was filed, and is
currently a preschooler (20 CFR 416.926(g)(2)).

2.

The claimant has not engaged in substantial gainful activity since October 15,
2009, the application date (20 CFR 416.924(b) and 416.971 et seq.).

3.

The claimant has the following severe impairments: Asthma; Sinusitis and
Attention Deficit Hyperactivity Disorder (ADHD) (20 CFR 416.924(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
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Part 404, Subpart P, Appendix 1 (20 CFR 416.924, 416.925 and 416.926).
5.

The claimant does not have an impairment or combination of impairments that
functionally equals the severity of the listings (20 CFR 416.924(d) and
416.926(a)).

6.

The claimant has not been disabled, as defined in the Social Security Act, since
October 15, 2009, the date the application was filed (20 CFR 416.924(a)).

(Tr. 16-23).
The regulations prescribe a three-step sequential evaluation process to determine whether
a child’s impairments result in marked and severe functional limitations:
Step one: If a child is engaged in substantial gainful activity, he is
not disabled. 20 C.F.R. § 416.924(b).
Step two: If a child's impairment(s) are not severe, i.e., causes no
more than minimal functional limitations, he is not disabled. 20
C.F.R. § 416.924(c).
Step three: If a child's impairment(s) do not meet, medically equal,
or functionally equal the listings (20 C.F.R. Pt. 404, Subpt. P, App.
1), he is not disabled. 20 C.F.R. § 416.924(d).
In the present case, Plaintiff only challenges whether Cristian’s impairment (or combination of
impairments) meets or medically equals a listed impairment.
On October 15, 2009, Plaintiff (Cristian’s mother) protectively filed an application for
child’s SSI benefits, on behalf of Cristian, due to asthma (Tr. 122-24, 136, 140). On April 29,
2011, Plaintiff, with Cristian and their attorney present, testified at an administrative hearing
before Administrative Law Judge (ALJ) John S. Pope (Tr. 52-70). On August 23, 2011, the ALJ
rendered a decision finding that Cristian was not disabled because his condition did not meet,
medically equal, or functionally equal any listed impairments (Tr. 13-24). The Appeals Council
denied Plaintiff’s request for review of the ALJ’s decision, thereby making the ALJ’s decision

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the final decision of the Commissioner (Tr. 1-3). 20 C.F.R. § 416.1481.
In November of 2009 Dr. Steven Roush, a non-examining state agency doctor, found that
Cristian had asthma and does not meet or equal a listing. (Tr. 245-250) Dr. Roush found that he
had been seen in the office in December of 2008 and October of 2009, and he had received oral
steroids as well as being on a regular bronchodilator. (Tr. 248) Dr. Roush noted that Cristian had
a long symptom free interval and good growth. (Id.)
In January of 2010 Cristian saw Dr. J. Veerula, his pediatrician, for an asthma check.
(Tr. 254) His mother reported that she had been giving him Pulmicort every day, and he was
also receiving Albuterol up to four times a day for the past week. (Id.) His current medications
were: Singulair tabs, Claritin syrup, Albuterol solution for nebulizer, and Pulmicort respules.
(Id.) On physical exam he had mild nasal congestion, a wheeze with cough only, and bilateral
wheezes. (Id.) The diagnosis was asthma with acute exacerbation. (Id.) Procedure included
administration of Decadron. (Id.) He was also started on Orapred suspension.(Id.)
In February of 2010 Cristian saw Dr. Veerula again for asthma issues including a runny
nose and cough. (Tr. 256) His complaints were a runny nose with thick greenish nasal discharge
and a cough. (Id.) His medications were Albuterol solution for nebulizer, Pulmicort respules,
Orapred, Singulair tabs, and Claritin syrup. (Id.) On exam he had mild nasal congestion and
purulent nasal discharge. (Id.) The diagnosis was acute sinusitis and nasal congestion. (Id.) The
doctor started Amoxil liquid and Ceron DM liquid. (Id.) On February 25, 2010 Dr. Veerula saw
Cristian again for asthma issues, as it was felt his nebulizers were not working enough. (Tr. 251)
His mother said there was wheezing and a lot of coughing at night and when he was active. (Id.)
His current medications included Albuterol solution for nebulizer, Pulmicort respules, and

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Singulair tabs. (Id.) On physical exam he had mild nasal congestion. (Id.)
Cristian was seen again by Dr. Veerula in March of 2010 for asthma problems including
green mucous. (Tr. 375) There were complaints of a cough for one week using Albuterol MDI
or nebulizer. (Id.) There was also a complaint of wheezing. (Id.) On physical exam there was
mild congestion and no wheezing. (Id.) The doctor found asthma with acute exacerbation. (Id.)
The doctor continued Amoxil liquid, Albuterol, Pulmicort and Singulair for the exacerbation.
(Tr. 376)
In March of 2010 Dr. Joseph Gaddy, a non-examining state agency doctor, and Dr. J.
Gange, a non-examining state agency psychologist, found that Cristian had ADHD and asthma
but he did not meet or equal a listing. (Tr. 260-265) The doctors noted that his medications were
Pulmicort, Albuterol, and Singulair, and that he had a recent asthma exacerbation in January of
2010. (Tr. 263) They also noted that he was occasionally treated with oral steroids. (Id.)
In April of 2010 Cristian saw Dr. Veerula for green drainage and asthma issues. (Tr. 377)
He was on Pulmicort respules, Albuterol solution for nebulizer, and Singulair. (Id.) On physical
exam he had moist mucous membranes. (Id.) Dr. Veerula found asthma but not an exacerbation.
(Id.) He started Rondec DM syrup as well as ProAir HFA aerosol with adapter and Qvar 40
inhaler. (Id.) A day later Cristian was seen by Dr. Deepkaran Reddy for hoarseness and sinus
problems. (Tr. 437) Dr. Reddy added Nesacorx AQ, continued Singulair, and added Omnicef for
six weeks at 300 mg daily. (Id.)
Cristian was seen by Dr. Veerula again in May of 2010 because his asthma was acting
up, and reportedly coughing a lot, mostly at night. (Tr. 373) The physical exam was normal. (Id.)
Cristian’s medications were ProAir HFA CFC and Qvar 40 inhaler. (Id.) The primary diagnosis

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was asthma without status asthmatic, NOS. (Id.) Dr. Veerula continued ProAir HFA aerosol with
adapter and Qvar 40 inhaler. (Id.) He also started Singulair tabs, chewable and Orapred
suspension, 15 mg/5ml. (Id.) Ten days later Cristian saw Dr. Veerula for a checkup. (Tr. 370)
His energy level was decreased, and he was fussy at bedtime. (Tr. 370) On physical exam he had
no wheeze. (Id.) He asthma was considered stable. (Id.) He present medications were Veramyst
27.5 mg/spray, ProAir HFA CFC, Qvar 40, and Singulair tabs. (Id.)
Cristian saw Dr. Veerula again in mid-June for asthma and behavior issues. (Tr. 368)
The complaints were a runny nose for several days, an inability to sleep at night due to a cough,
and wheezing on Albuterol and Pulmicort. (Id.) At that time he was on Singulair tabs, Albuterol,
and Pulmicort. (Id.) The physical examination was normal. (Id.) The diagnosis was asthma,
NOS. (Id.) The doctor continued the Singulair tabs and Qvar inhaler, but he added a Ventolin
HFA inhaler. (Id.)
In July of 2010 Cristian saw Dr. Veerula for a cough, runny nose, and fever. (Tr. 372)
On physical exam he had mild nasal congestion. (Id.) He was on Vyvanse 20 mg, Singulair tabs,
Qvar, and Ventolin HFA inhaler. (Id.) The diagnosis was acute sinusitis and nasal congestion.
(Id.) For the sinusitis Amoxil liquid was started. (Id.) Dr. Reddy saw Cristian in August of 2010
and the doctor noted that his voice was still hoarse but his cough had improved and there was no
nasal drainage. (Tr. 435) The doctor added Prevacid. (Id.)
In September of 2010 Cristian saw Dr. Veerula for a checkup. (Tr. 477) His energy level
was decreased, and he was fussy at bedtime. (Id.) On physical exam there were no wheezes.
(Id.) The current medications were Vyvanse, Singulair tabs, Qvar, Ventolin HFA, and Claritin.
(Id.) Dr. Veerula found that the asthma was fairly well controlled at that point, but he restarted

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Vyvanse. (Tr. 478) Dr. Veerula saw him two months later in November for coughing, wheezing,
a runny nose, and a fever. (Tr. 476) He continued on Vyvanse, Singulair tabs, Qvar, Claritin,
Ventolin HFA, and Ibuprofen liquid. (Id.) The physical exam was negative. (Id.) The doctor
added Rondec-DM syrup. (Id.) Dr. Veerula saw him a week later for a cough and green drainage.
(Tr. 474) He complained of nasal congestion, coughing quite a bit a night, and wheezing at night
with green drainage. (Id.) He was on Qvar, Ventolin HFA, and Orapred 15 mg/5mL. (Id.) On
physical exam he had mild nasal congestion and purulent nasal discharge. (Id.) Dr. Veerula
found an acute exacerbation of asthma. (Id.) The doctor started Omnicef liquid, Symbicort
aerosol with adapter, Ventolin HFA inhaler, and Singulair tabs. (Id.) He also referred him for an
MDI Aero chamber. (Id.) Decadron was administered in the office. (Id.) Cristian was seen again
December of 2010 by Dr. Veerula with coughing, wheezing, a runny nose, congestion, and
restlessness. (Tr. 479) He was on Symbicort, Ventolin HFA, and Singulair tabs. (Id.) Dr. Veerula
diagnosed acute exacerbation of his asthma. (Id.) He started Advair HFA aerosol with adapter
and Motrin Children’s suspension. (Id.)
In January of 2011 Cristian saw Dr. Veerula claiming a green nasal discharge and a
cough. (Tr. 497) He was on Advair HFA, Singulair tabs, and ProAir HFA. (Id.) On physical
exam he had mild nasal congestion and purulent nasal discharge. (Id.) Dr. Veerula diagnosed
acute sinusitis, nasal congestion, and a cough. (Id.) He started Sulfamethoxazole-Trimethoprim
suspension, Veramyst nasal spray, and Allegra. (Id.)
In late January Cristian was at the Lutheran Hospital ER for a fever and sore throat. (Tr.
481) The symptoms had started on that day. (Id.) On physical exam there was no wheezing. (Tr.
482) A chest x-ray showed pneumonia. (Id.) He was given a dose of Rocephin and Tylenol. (Id.)

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He was discharged in stable condition. (Id.) Azithromycin was added to his medications. (Id.)
In February of 2011 Cristian saw Dr. Veerula for a follow-up on his pneumonia. (Tr.
493) He was on Ibuprofen, Tylenol Children’s, Veramyst, Advair HFA, Singulair tabs, ProAir
HFA, Albuterol nebules, and vitamin daily multivitamin. (Id.) On physical exam he had mild
nasal congestion and coarse breath sounds on auscultation. (Id.) The assessment was pneumonia,
cough, and exacerbation of asthma. (Id.) A steroid injection was given. (Id.) He was seen again
in March of 2011 for a flu shot, a cough, a runny nose, sneezing, and nasal congestions. (Tr.
490) His medications included Pulmicort respules, Albuterol nebules, Singulair chewable,
Veramyst, Advair HFA, and ProAir HFA. (Id.) Physical exam was normal.
In support of a remand, Plaintiff argues that the ALJ’s evaluation of whether Cristian met
Listing 103.03C2 was perfunctory. Failure to discuss or even cite a listing, combined with an
otherwise perfunctory analysis, may require remand. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th
Cir. 2003); Scott v. Barnhart, 297 F.3d 589, 596 (7th Cir. 2002).
In the present case, although the ALJ mentioned Listing 103.03 in his decision, he did not
discuss or mention specifically 103.03C2 which involves steroid treatment. Specifically the
listing is set out below:
Listing 103.03Asthma. With:
***
C. Persistent low-grade wheezing between acute attacks or absence of extended
symptom-free periods requiring daytime and nocturnal use of
sympathomimetic bronchodilators with one of the following:
1. Persistent prolonged expiration with radiographic or other appropriate
imaging techniques evidence of pulmonary hyperinflation or peribronchial
disease; or

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2. Short courses of corticosteroids average more than five days per month
for at least 3 months over a 12-month period …
There are essentially three elements necessary to prove this listing and some are in the
alternative
as follows:
(1)

Asthma,

(2)

Persistent low-grade wheezing between acute attacks or absence of extended
symptom-free periods acquire a timed and nocturnal use of sympathomimetic
bronchodilators, and



Short courses of corticosteroids.

Plaintiff points out that there is no dispute that Cristian has asthma. Both of the State agency
doctors found that Cristian had asthma. (Tr. 245 and 260) Dr. Veerula, his pediatrician, and Dr.
Reddy, his pulmonologist, also found this as a diagnosis. (Tr. 254 and 35) Thus, it is clear that
Cristian meets the first element of this listing.
The Plaintiff also contends that Cristian has an absence of extended symptom-free
periods requiring daytime and nocturnal use of sympathomimetic bronchodilators. The treatment
records show that on January of 2010 through and including March of 2011 Cristian at least had
one symptom of asthma as indicted in the medical records for all but three months. Plaintiff
further points out that Christian needed sympathomimetic bronchodilators daytime and
nocturnal. (Tr. 251, 254, 256, 368, 372, 373, 375, 377, 474, 477, 490, 493, and 497). Thus,
Plaintiff contends that Cristian meets the second element of the Listing. The Plaintiff also notes
that Cristian does have persistent low-grade wheezing between attacks. Wheezing was a
symptom or found on physical examination in five of the 15 months beginning in January of
2010. (Tr. 251, 254, 375, 476, and 479) Thus, Plaintiff contends that Cristian meets this element
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in the alternative.
Additionally, Cristian was taking Orapred which is a corticosteriod in January of 2010,
February of 2010, May of 2010, and November of 2010. (Tr. 254, 256, 373, and 474) Thus, he
meets the third and last prong of the listing.
The Plaintiff contends that, although Cristian’s representative advocated both prior to the
hearing and at the hearing for the ALJ to consider this listing and provided evidence to support
the argument, the ALJ did not specifically review this portion of the listing (Tr. 55-56 and 19091). Thus, the Plaintiff claims that the ALJ’s review was perfunctory. The Plaintiff further notes
that the ALJ failed to call a Medical Expert (ME) at hearing or submit interrogatories pre- or
post-hearing.
In response, the Commissioner does not dispute that Cristian has asthma and that he
required short courses of corticosteroids. The Commissioner claims, however, that the medical
evidence suggests that Cristian’s asthma was controlled except for occasional exacerbations. The
Commissioner argues that the treatment record shows that Cristian had frequent upper
respiratory infections, and an ear infection on two occasions, where the focus of treatment was
not asthma. Thus the Commissioner concludes that Plaintiff is unable to demonstrate the
requisite “absence of extended symptom-free periods” to meet the requirements of Listing
103.03(C).
Plaintiff points out, however, that the state agency physician who reviewed Cristian’s
records in March of 2010, Dr. Joseph Gaddy, was the last doctor to do so.

Plaintiff has

provided a chart on page 11 of her brief which details the instances in the record where Cristian
was seen for asthma symptoms. The dates on this chart range from January 2010 through March

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2011. Cristian had wheezing in January, February, March, November and December of 2010.
He had coughing in January, February, March, May, June, July, August, November and
December of 2010, and also in January, February, and March of 2011. Plaintiff argues that since
Dr. Gaddy did not have all of the treatment records when he did his review in March of 2010, the
ALJ is essentially “playing doctor” by relying on his own judgment to determine whether
Cristian’s symptoms after March 2010 were due to colds or due to asthma. If, as Plaintiff
asserts, some of Cristian’s post-March 2010 symptoms were due to asthma, then he clearly
satisfies the criteria of Listing 103.03C. Accordingly, as the ALJ was not qualified to make the
medical determination that Cristian’s symptoms were not due to asthma, the case must be
remanded. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003).
Additionally, as Plaintiff notes, the post-March 2010 treatment records show that Cristian
had wheezing in November and December of 2010. These two additional episodes of wheezing
could very well satisfy the first prong of Listing 103.03C (“persistent low-grade wheezing
between acute attacks”), but were not considered by any reviewing medical doctor. Thus, the
case also needs to be remanded for consideration of this factor.
Therefore, the court will remand this case back to the Commissioner for further
proceedings. The medical evidence identified by the Plaintiff must be evaluated by a qualified
medical doctor, either by way of a state agency review, by post-hearing interrogatories, by a
designated Medical Expert at a new hearing, or some other review that is satisfactory to both
parties.
Conclusion
On the basis of the foregoing, this case is hereby REMANDED to the Commissioner for

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proceedings consistent with this Opinion and Order.

Entered: March 5, 2014.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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