Aden v. Astrue

Filing 23

Memorandum and Order: Declining to Adopt the Report and Recommendation 19 ; Denying Defendant's Motion for Summary Judgment 15 ; Denying Plaintiff's Motion for Summary Judgment 13 ; and Remanding this matter for rehearing before the ALJ under sentence four of 42 U.S.C. Section 405(g). (Written Opinion). Signed by The Hon. Paul A. Magnuson on 08/28/2013. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Roda Aden, on behalf of H.A.,
a minor,

Civ. No. 12-1782 (PAM/AJB)

Plaintiff,
v.

MEMORANDUM AND ORDER

Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

This matter is before the Court on the Report and Recommendation (“R&R”) of Chief
Magistrate Judge Arthur J. Boylan dated July 15, 2013. In the R&R, Chief Magistrate Judge
Boylan recommended that the Court deny Plaintiff’s Motion for Summary Judgment, grant
Defendant’s Motion for Summary Judgment, and dismiss the matter with prejudice. Plaintiff
filed timely objections to the R&R.
According to statute, the Court must conduct a de novo review of any portion of the
Magistrate Judge’s opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b). Based on that de novo review, the Court
declines to adopt the R&R and remands the matter to the ALJ for further proceedings.
BACKGROUND
Plaintiff Roda Aden sought Supplemental Security Income (“SSI”) benefits for her
minor daughter, H.A., in May 2009.1 Plaintiff claimed that her daughter was disabled
1

In a different case, Plaintiff seeks SSI benefits for another of her children, also with the
initials H.A. Aden v. Colvin, 12cv1781 (PAM/AJB). The Magistrate Judge referred to the
minor child in that case as “H.S.A.” to avoid confusion.

because of asthma, and alleged that the disability began on the date of her daughter’s birth,
September 5, 2006. The Commissioner denied Plaintiff’s application, and ultimately an
Administrate Law Judge (“ALJ”) held a hearing on the application. The ALJ determined
that, although H.A.’s asthma was a severe impairment that caused more than minimal
functional limitations, H.A. did not meet or medically equal the listing of impairments in the
regulations, as required for payment of SSI benefits. (App. 27, 36.) Plaintiff unsuccessfully
appealed that determination to the Appeals Council and now brings this lawsuit seeking SSI
benefits for H.A.
In the R&R, Chief Magistrate Judge Boylan noted that the ALJ’s decision hinged on
her determination that medical evidence did not establish the requisite number of asthma
attacks requiring physician intervention, or persistent low-grade wheezing between attacks,
or an absence of extended symptom-free periods or growth impairment. (R&R at 4.)
Plaintiff’s arguments here focus on the first of these determinations, namely that the record
does not show the required number of prescriptions for asthma attacks during a 12-month
period.
DISCUSSION
A.

Standard of Review
This Court’s review of the Commissioner’s decision is limited to determining whether

that decision is “supported by substantial evidence on the record as a whole.” McKinney v.
Apfel, 228 F.3d 860, 863 (8th Cir. 2000).

2

Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s
conclusion. In determining whether existing evidence is substantial, we
consider evidence that detracts from the Commissioner’s decision as well as
evidence that supports it. As long as substantial evidence in the record
supports the Commissioner’s decision, we may not reverse it because
substantial evidence exists in the record that would have supported a contrary
outcome or because we would have decided the case differently.
Id. (citations omitted).
Plaintiff raises three specific objections to the R&R’s findings. First, she contends
that the R&R erred in determining that a June 2008 prescription fell outside the 12-month
window set forth in the regulations. Second, she argues that the R&R erred in finding that
there were no treatment notes supporting a September 2008 prescription. Finally, she
contends that the R&R erred in determining that a May 2009 prescription was issued for
reasons other than asthma. The Government’s “response” to Plaintiff’s objections does not
address specifically any objection, merely reciting the Government’s belief that the Court
should uphold the Commissioner’s decision to deny benefits.2

2

The Court notes that the Government has a habit in social security cases of submitting
“responses” to R&Rs and objections thereto that are neither helpful nor “responses” in any
meaning of that term. See, e.g., Gov’t’s Response, Larson v. Astrue, 12cv97 (Docket No.
17) (“This Court should adopt the Report and Recommendation because it addresses and
rejects Plaintiff’s claim. In addition, it should be adopted for the reasons stated in the
Commissioner’s Motion for Summary Judgment and Memorandum in Support.”); Gov’t’s
Response, Luna v. Astrue, 11cv1137 (Docket No. 29) (same); Gov’t’s Response, Aden v.
Colvin, 12cv1781 (Docket No. 25) (same). In this case, the Government filed two identical
“responses,” one to the R&R and one to Plaintiff’s objections. (Docket Nos. 23, 25.) In
many cases, a substantive response to the plaintiff’s objections would be welcome. The
responses the Government offers, however, are anything but. In the future, if the
Government has nothing substantive to add to the arguments already presented, it should
save taxpayer funds and say nothing at all.
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B.

Number of Prescriptions
As noted, the R&R’s conclusions in this matter depend on the determination that

Plaintiff had not established the requisite number of prescriptions within a 12-month period.
To determine whether a child is disabled because of asthma, the regulations require that the
child has been prescribed “[s]hort courses of corticosteroids that average more than 5 days
per month for at least 3 months during a 12-month period.” 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 103.03(C)(2). The type of medication contemplated by this provision is corticosteroids
prescribed as short-court treatment for acute asthma attacks or severe persistent asthma, not
lower doses of inhaled corticosteroid prescribed as a long-term treatment for asthma. (R&R
at 7-8 (citing Sanchez v. Barnhart, No. 03-C-537-C, 2005 WL 752220, at *9 (W.D. Wis.
Mar. 30, 2005).) The R&R found that the ALJ failed to “make clear, direct and specific fact
determinations” on this issue, but nevertheless determined that remand was not required
because the record established that H.A. did not meet the listing. (Id. at 8-9.)
The record, however, is not as clear as the R&R suggests. The R&R found that
several instances in which H.A. was prescribed courses of corticosteroids could not be
counted toward the three-treatments-in-12-months requirement because the record was not
clear that the prescriptions were to treat H.A.’s asthma or were treatments for some other
condition. But this is a determination that the ALJ should have made in the first instance.
The ALJ has the benefit of medical reviewers; she could have asked one of the reviewers to
look carefully at the treatment notes for each corticosteroid prescription to determine what
condition that prescription was intended to address. Especially in light of the fact that there
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is little evidence that H.A. suffered from other maladies for which corticosteroids may have
been prescribed,3 the Court cannot say, on the basis of a paper record that is often extremely
difficult to decipher, that the record establishes unequivocally that H.A. did not receive the
required number of corticosteroid prescriptions. This is something for the ALJ to examine
and determine in the first instance.
Thus, a remand to the ALJ is required in this case. See 42 U.S.C. § 405(g) (“The
court shall have power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing.”). On rehearing, the ALJ should specifically
inquire as to whether the corticosteroids prescribed were prescribed, in whole or in part, to
treat H.A.’s asthma, and whether the record establishes that H.A. was prescribed a course of
corticosteroids for her asthma three times during any 12-month period.
CONCLUSION
Substantial evidence in the record before the Court does not support the
Commissioner’s decision to deny benefits, nor is there substantial evidence that Plaintiff is
entitled to benefits. Accordingly, IT IS HEREBY ORDERED that:

3

Corticosteroids are prescribed to treat rheumatoid arthritis, lupus, asthma, allergies, and
other similar conditions. See Mayo Clinic staff, “Prednisone and other corticosteroids,”
http://www.mayoclinic.com/health/steroids/HQ01431 (last visited Aug. 21, 2013).
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1.

Defendant’s Motion for Summary Judgment (Docket No. 15) is DENIED;

2.

Plaintiff’s Motion for Summary Judgment (Docket No. 13) is DENIED; and

3.

This matter is REMANDED for rehearing before the ALJ under sentence four
of 42 U.S.C. § 405(g).

Dated: August 28, 2013

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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