Blundell v. Commissioner of Social Security

Filing 23

OPINION AND ORDER REVERSING the Commissioner of Social Security's final decision and REMANDING the case to the Social Security Administration for further proceedings consistent with this Opinion pursuant to sentence four of 42 USC section 405(g). Signed by Chief Judge Philip P Simon on 8/5/2016. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TINA M. BLUNDELL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CAUSE NO. 1:15-CV-67

OPINION AND ORDER
Plaintiff Tina Blundell appeals the denial by the Social Security Administration of
supplemental security income benefits. Blundell claims the ALJ made several errors.
But because I find that the ALJ improperly failed to discuss a specific Listing and did
not address an important pulmonary function test, I REVERSE the ALJ’s decision and
REMAND on this issue.
Background
Because this case must be remanded on the issue relating to Blundell’s asthma
and chronic obstructive pulmonary disease (“COPD”), I will concentrate my discussion
of the facts to that issue. In May 2011, Blundell’s primary physician prescribed
Albuterol and Symbicort for her asthma and COPD. (R. 289-90.)1 By January 2012,

1

Citations to the record will be indicated as “R. __” and indicate the pagination found in
the lower right-hand corner of the record found at DE 12.

Blundell’s physician prescribed Albuterol through a nebulizer as needed, up to every
four to six hours. (R. 270.)
On July 18, 2012, Blundell underwent pulmonary function testing. This was
precipitated by a diagnosis made a month earlier by an emergency room physician that
Blundell was suffering from COPD and bronchitis. (R. 387.) The pulmonary
functioning test includes a component called the one-second forced expiratory volume
test, or “FEV1” which measures the ability of a claimant to move air in and out of her
lungs. Specifically, the FEV1 measures the amount of air that a person can breathe out
in one second after taking a deep breath and blowing out as hard as they can.
Measurements are taken both before and after the person inhales a bronchodilator
(which increases airflow to the lungs). Blundell claims that her testing resulted in a best
pre-test FEV1 of .68 and best post-test of .63. (DE 17 at 15; R. 307.) This pulmonary
function test is at the heart of this appeal. As discussed below, there is some
discrepancy in the medical record as to whether Blundell was administered a
bronchodilator before the second round of breathing tests. Regardless, the
interpretation of the test was “[s]evere obstruction and low vital capacity possibly due
to restriction,” reflecting a lung age of 107 years. (R. 307.)
About a month after her pulmonary function test, Blundell had another
appointment with her doctor. The doctor noted Symbicort and Albuterol as her current
medications and gave her a sample of a Spiriva Inhaler. (R. 400.) Blundell testified at
the hearing before the ALJ that she used a nebulizer anywhere from two to six times a
2

day, and used a rescue inhaler as well. (R. 50-51.)
Discussion
For Blundell to be eligible for SSI benefits under the Social Security Act, she must
establish that she is disabled. This means she 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 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).
There is a five step process that is used to determine whether a person applying
for benefits is disabled. Only one of those steps — step three — is germane to this case.
At step three a person is presumed to be disabled if she has an impairment or
combination of impairments that meets or equals the severity of an impairment in the
SSA’s Listing of Impairments. These “Listing of Impairments” are set out in 20 C.F.R. §
404, Subpt. P. The task at step three is to compare the claimant’s impairments with the
“list of impairments presumed severe enough to preclude any gainful work.” Rice v.
Barnhart, 384 F.3d 363, 365 (7th Cir. 2004).
The ALJ in this case determined that Blundell was not disabled and my task is to
determine, using deferential review, whether that finding is supported by substantial
evidence. See 42 U.S.C. § 405(g). Substantial evidence consists of “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
3

There is no question, as the ALJ correctly found, that Blundell suffers from
several severe impairments: asthma, obesity, lumbar degenerative disc disease,
depression, and borderline intellectual functioning. (R. 12.) The question is whether
those severe impairments meet the Listing of Impairments in the Social Security
regulations. The ALJ evaluated Blundell’s claim under the Listings 1.04 (disorders of
the spine), 3.03 (asthma), and mental impairments (12.02, 12.04, and 12.05), and found
that no Listings were met. (R. 13.) Blundell argues that the ALJ erred in not mentioning
Listing 3.02A, and incorrectly ignored the pulmonary test described above that on the
face of it appears to qualify Blundell for benefits.
Respiratory disorders and the listings used to evaluate them include COPD
(3.02), and asthma (3.02 or 3.03). 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 3.00. The
ALJ identified Listing 3.03 at issue for asthma, but he never discussed whether Blundell
met Listing 3.02 for COPD. At Step 3, the ALJ determined that Blundell’s asthma did
not meet Listing 3.03 “because there is no evidence of chronic asthmatic bronchitis or
attacks in spite of prescribed treatment requiring physician intervention and occurring
at least every 2 months or at least six times a year.” (R. 13.)
There are two ways to find a disability under 3.03 (asthma). Under 3.03A, for a
claimant with “chronic asthmatic bronchitis,” an ALJ must “[e]valuate under the criteria
for chronic obstructive pulmonary disease in 3.02A.”

20 C.F.R. Part 404, Subpt. P,

App. 1, Listing 3.03. “The requirements of 3.02A (and therefore 3.03A) are met if the
claimant’s FEV1 is equal to or less than the value depicted on a chart that correlates to
4

the claimant’s height.” Johnson v. Astrue, 2012 WL 4471607, at * 9 (N.D. Ind. Sept. 26,
2012) ; see 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 3.02A, Table 1. The other route to
find a disability under 3.03 for asthma is Listing 3.03B, which requires attacks occurring
at least once every 2 months or at least 6 times a year. 20 C.F.R. Part 404, Subpt. P, App.
1, Listing 3.03.
The problem with the ALJ’s findings is his conclusion that “there is no evidence
of chronic asthmatic bronchitis.” (R. 17.) What makes this problematic is the ALJ’s
failure to address Blundell’s pulmonary function test. Recall that Blundell took a
pulmonary function test in July 2012. That very test is used by the Social Security
Administration in Listing 3.02 (chromic pulmonary insufficiency), and, by relation,
3.03A (chronic asthmatic bronchitis). As noted above, there is a table that correlates the
claimant’s height without shoes to a FEV1 number. If the FEV1 number is at or below
the threshold FEV1 number for her height, then the claimant qualifies for disability
benefits under that Listing. See 20 C.F.R. Part 404, Subpt. P, App. 1.
The required FEV1 level for Blundell’s height of 62 inches is 1.15. 20 C.F.R. Part
404, Subpt. P, App. 1, Listing 3.02A. Blundell claims that her testing resulted in a best
FEV1 of .68 before the administration of medication and .63 after the administration of
medication, which would thus meet the requirements of the pertinent Listing. But there
is something amiss about these tests. When I look at the test results, there is a table that
does indeed list her best pre-test FEV1 number as .68 and post-test number (after
medicine) as .63. (R. 307.) However, on the preceding page, it shows “n/a” for the
5

bronchodilator name and “n/a” for dosage, and that the “best post-bronchodilator
FEV1" was also “n/a.” (R. 306.) Under the regulations, a post-bronchodilator test
occurs only if the patient meets the threshold of having a pre-bronchodilator FEV1 value
that is “less than 70 percent of the predicted normal value.” 20 C.F.R. Part 404, Subpt. P,
App. 1, Listing 3.00E. Here, Blundell’s pre-test indicates that it was 25% of the
predicted normal value (R. 307), but it is unclear in this case whether a bronchodilator
was actually given to Blundell after the first set of tests. The regulations provide that
“[i]f a bronchodilator is not administered, the reasons should be clearly stated in the
report,” and that “[p]ulmonary function studies performed to assess airflow obstruction
without testing after bronchodilators cannot be used to assess levels of impairment in
the range that prevents any gainful work activity, unless the use of bronchodilators is
contraindicated.” 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 3.00E. There is no
notation of whether a bronchodilator was contraindicated. (R. 306-07.)
Aside from the issue of whether post-bronchodilator testing was actually
conducted, the test results themselves should be met with some degree of skepticism. A
bronchodilator, by definition, is a drug that increases the volume of the lungs. It is
therefore odd that Blundell’s FEV1 test score listed in the table indicates that her pre-test
score was higher than her post-test score. This could perhaps mean that Blundell wasn’t
using her best efforts during the testing process.
But while there may well be something fishy about the pulmonary testing done
on Blundell, it is neither here nor there for present purposes. This is because my task is
6

to determine whether the ALJ confronted this evidence, and if he did, whether he
adequately explained why he rejected it. See Indoranto v. Barnhart, 374 F.3d 470, 474 (7th
Cir. 2004); Ridgway v. Colvin, No. 2:14-CV-105-TLS, 2016 WL 1567254, at *4-5 (N.D. Ind.
Apr. 19, 2016); McDowell v. Colvin, No. 3:12-cv-723, 2014 WL 1094905, at *12-13 (N.D.
Ind. Mar. 18, 2014); Johnson v. Barnhart, 66 F. App’x 285, 288-89 (3d Cir. 2003). Here, the
ALJ entirely disregarded the pulmonary function test.
This case is remarkably similar to Johnson v. Astrue, in which Judge DeGuilio was
also presented with a pulmonary function test where the claimant got a FEV1 number of
1.34 before the bronchodilator and .11 after the bronchodilator. Johnson, 2012 WL
4471607, at *9. Judge DeGuilio faulted the ALJ because he:
did not even address the test results, or compare the results and the
claimant’s height to the table. To the contrary, he noted that he
found “no evidence suggesting a different conclusion is more
appropriate” than the one he reached, indicating that he did not
consider the FEV1 figures at all. Plainly this evidence does suggest a
different conclusion.
Id. (emphasis in original). Judge DeGuilio noted that “[i]n the end, there may be good
reasons for finding the results of the claimant’s pulmonary function test incredible,
especially as compared to the medical experts’ opinions” and recognized the possibility
that the second exhalation may not have been an honest effort. Id. Nevertheless, Judge
DeGuilio reiterated the basic point that an ALJ must explain why he rejected a piece of
evidence because the failure to do so makes it difficult for the reviewing court to
determine whether the ALJ properly rejected the evidence, or even considered it at all.

7

Id. It is for this reason that the ALJ’s failure to confront significant contrary evidence
warrants remand. Golambiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003).
The same is true here. The ALJ should have addressed Listing 3.02 and
discussed whether Blundell’s test results supported a finding that 3.02 or 3.03 was met.
The ALJ committed reversible error when he disregarded the pulmonary test results
and gave no explanation as to whether he considered them. Brindisi ex rel Brindisi v.
Barnhart, 315 F.3d 783, 786 (7th Cir. 2003) (“Without even a mention, we are left to
wonder whether the [test] was even considered. Here the ALJ should have discussed
not only the results of the [test], but also whether those results meet the requirement of
[the] listing . . . .”).
Nothing in Jones v. Barnhart, 364 F.3d 501, 504 (3d Cir. 2004), a case relied upon
by the government, commands a different result. The government cites to Jones for the
proposition that FEV1 test results alone are insufficient to support a claim of disability.
(DE 22 at 6.) It is true that the FEV1 should not be considered in isolation in assessing
whether a claimant has a Listed impairment. However, in Jones, the ALJ expressly
considered the pulmonary function studies and analyzed them along with other
medical evidence in finding that the claimant’s asthma was only mild. Id. This case is
much closer to Jury v. Colvin, where the district court ordered a remand because the ALJ
“entirely failed to discuss the results of the pulmonary function testing in connection
with the requirements for listing 3.02(C).” Jury v. Colvin, No. 3:12-CV-2002, 2014 WL
1028439, at *6-7 (M.D. Penn. Mar. 14, 2014).
8

The Government also quotes Thacker v. Commissioner of Social Security., 93 F.
App’x 725, 728 (6th Cir. 2004), which found that “only one [FEV1] maneuver was
performed. Therefore, this rating is insufficient to satisfy listing 3.02A.” In Thacker, the
claimant only did one forced maneuver (in other words, they only blew out once). Id.
However, a proper test should record 3 forced maneuvers, and record the largest of at
least 3 trials. 20 C.F.R. Part 404, Subpt. P, App. 1, Listing 3.00E. In this case, Blundell
did do 3 trials, and they are all noted on the chart, including the best result. (R. 307.)
Finally, Blundell argues in a footnote that the ALJ should have also analyzed
Blundell’s FVC scores as well. (DE 17 at 20 n. 76.) While the FEV1 measures the volume
of air you exhale in the first second of the forced expiratory maneuver, the total volume
of air that you exhale during the entire maneuver is the FVC. Barber v. Commissioner of
Social Security, No. 3:13-cv-110, 2014 WL 4706865, at *4 n. 6 (S.D. Ohio Sept. 22, 2014).
The highest FEV1 value evaluates a respiratory disorder under 3.02A and 3.03A; and the
highest FVC value evaluates a respiratory disorder under 3.02B. 20 C.F.R. Part 404,
Subpt. P, App. 1, Listing 3.00E. Blundell’s FVC results are located on the same table as
the FEV1. (R. 307.) On remand, the ALJ should also consider the FVC results, along
with the other medical evidence in the record, when deciding whether Blundell has a
listing level impairment.
Ultimately, I’m not sure if Blundell’s respiratory issues render her disabled. Yet
the case law is clear that the ALJ should have discussed whether Blundell met Listing
3.02 and should have confronted the respiratory tests. In sum, I remand this case so the
9

ALJ can analyze the pulmonary tests in assessing whether Blundell’s respiratory
impairment meets or equals a listed impairment at Step 3.
Having already determined that remand is necessary, I find no compelling
reason to address each of Blundell’s other arguments in detail. However, I do note that
it seems like the ALJ properly recognized Blundell’s obesity and mental health and
gastrointestinal impairments, considered the evidence, and provided a thorough
discussion on these issues.
Conclusion
For the reasons set forth above, the Commissioner of Social Security’s final
decision is REVERSED and this case is REMANDED to the Social Security
Administration for further proceedings consistent with this opinion pursuant to
sentence four of 42 U.S.C. section 405(g).

SO ORDERED.
ENTERED: August 5, 2016
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

10