Pannell v. Colvin
MEMORANDUM OPINION..The court concludes that the ALJ failed to properly consider whether J.P.'s impairments meet or medically equal Listing 108.04. Accordingly, for the reasons set forth above, this case is remanded to the ALJ to consider and specifically address whether J.P.'s impairments meet or medically equal Listing 108.04. An appropriate Judgement Order is issued herewith. Signed by Magistrate Judge David D. Noce on 8/17/15. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JEFFREY PANNELL o/b/o J.P.,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 1:14 CV 151 DDN
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the application of plaintiff Jeffrey
Pannell o/b/o J.P. (hereafter in this memorandum the court refers to J.P., a boy who was
three years of age when the subject application for benefits was filed, as plaintiff) for
supplemental security income under Title XVI of the Social Security Act (the Act), 42
U.S.C. § 401. Both parties have consented to the exercise of plenary authority by the
undersigned Magistrate Judge under 28 U.S.C. § 636(c).
For the reasons set forth below, this case is remanded for further consideration by
the Administrative Law Judge (ALJ).
Plaintiff was born on May 26, 2008. (Tr. 131.) Plaintiff filed his Title XVI
application on August 10, 2011, alleging a disability onset date of August 26, 2008, due
to eczema, bronchitis, and asthma. (Id.) His application was denied initially, and he
requested a hearing before an Administrative Law Judge (ALJ). (Tr. 45-48, 51.)
On June 4, 2013, following a hearing, the ALJ denied the application. (Tr. 9-22.)
The Appeals Council denied plaintiff’s request for review. (Tr. 1-5.) Thus, the decision
of the ALJ stands as the final decision of the Commissioner.
II. MEDICAL HISTORY
On July 26, 2010, plaintiff began seeing Kimberly Keser, A.P.R.N., at A Woman’s
Life Family Healthcare Center. (Tr. 204.) During his initial visit, Nurse Keser diagnosed
him with eczema. She noted that he displayed a moderate rash, mainly pink in color, on
his entire body. She described some areas of the rash as feeling like sandpaper. (Tr.
205.) She prescribed him Benadryl and Elidel (eczema cream). (Id.)
On a follow-up visit for cough and dry skin on August 11, 2010, J.P. was
prescribed Triamcinolone Acetonide (eczema cream). (Tr. 206-08.) On October 30,
2010, J.P. again saw Nurse Keser for eczema, and was prescribed flucticasone/eucerin
(eczema cream), and a refill of Benadryl. (Tr. 209-10.)
On November 2, 2010, Nurse Keser saw J.P. for acute cough and wheezing. He
was prescribed Albuterol for asthma. (Tr. 212-14.)
On January 8, 2011, J.P. saw Nurse Keser for cough, sore throat, and watery eyes.
(Tr. 218.) She noted coarse breath sounds. He was prescribed Cefzil (for skin infections)
and Claritin (for allergies). (Tr. 219.) On January 21, 2011, J.P. again saw Nurse Keser
for cough and runny nose. He was prescribed Omnicef (an antibiotic), Children’s Motrin,
Children’s Tylenol, and promethazine with dextromethorphan (an antihistamine). (Tr.
On April 11, 2011, plaintiff was seen at the emergency room for cough,
congestion, and an infected finger. (Tr. 185.) The attending physician noted mildly
labored breathing. (Tr. 186.) He also noted eczema, and described J.P.’s finger as
having a weeping, oozing, and scabbed area. (Id.) J.P. was diagnosed with bronchitis
and a skin infection on his finger. (Tr. 188.)
On May 2, 2011, plaintiff was seen at the emergency room for rash on his upper
face and lower extremities. (Tr. 179.) The attending physician noted rash, with redness
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swelling, and open bleeding in some areas from scratching. (Id.) J.P.’s mother stated
that she had used cocoa butter on his rash, and believed this caused the increased
The attending physician prescribed Orapred (a corticosteroid), and
hydrocortisone (a cream for treating allergic reactions). (Tr. 182.)
On August 7, 2011, plaintiff was seen at the emergency room for trouble
breathing, coughing, vomiting, and a fever. (Tr. 168.) The attending physician noted
wheezing, but also noted that air entry was good. (Tr. 169.) Plaintiff was prescribed
amoxicillin (an antibiotic), and prednisolone (a corticosteroid). (Tr. 172.) On a followup visit with Nurse Keser on August 8, 2011, plaintiff was prescribed Singulair (for
asthma and allergies). (Tr. 235.)
On September 1, 2011, plaintiff was seen by Nurse Keser for a cough. (Tr. 239.)
During the visit, Nurse Keser noted a rash, coarse breath sounds, and wheezing in the
apices (upper lungs). (Tr. 240.)
On September 14, 2011, plaintiff was seen by Nurse Keser for an evaluation of his
seasonal allergies. (Tr. 250.) He was found to be allergic to wheat, peanuts, milk, pet
dander, trees, and pigweed. (Tr. 256.)
On October 7, 2011, Rebecca Wotherspoon, M.D., a State agency medical
consultant, filled out a childhood disability evaluation form. In her evaluation, Dr.
Wotherspoon found that, while plaintiff’s impairment or combination of impairments was
severe, it did not meet, medically equal, or functionally equal any listing. (Tr. 261.) Dr.
Wotherspoon evaluated plaintiff in the domains of: acquiring and using information,
attending and completing tasks, interacting and relating with others, moving about and
manipulating objects, caring for oneself, and health and physical well-being.
Wotherspoon found plaintiff had no limitation in the first five domains, and less than
marked limitations in the health and physical well-being domain. (Tr. 263.)
On November 21, 2011, plaintiff was seen by Nurse Keser for a lesion on his right
lower extremity, as well as a follow-up for allergies and eczema. Nurse Keser noted a
moderate amount of rash, as well as an open wound to his right lower calf measuring
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about .5 centimeters.
During a follow up appointment two days later,
plaintiff’s mother reported that the lesion had almost healed. (Tr. 288.)
On February 9, 2012, plaintiff was seen by Dolores McDowell, N.P., in a followup visit for an ear infection. (Tr. 276.) Nurse McDowell prescribed him Zyrtec (for
allergies), and Derma-Smoothe (a synthetic hydrocortisone). (Tr. 277-78.)
On August 16, 2012, plaintiff was seen by Nurse Keser to request refills on his
asthma and eczema medications.
Nurse Keser noted severe eczema on
plaintiff’s arms, hands, legs, and feet. (Tr. 270.)
On February 1, 2013, plaintiff was seen by Susan Farrow, F.N.P., at Cross Trails
Medical Center of Marble Hill for a refill of prescriptions, as well as for eczema and
Nurse Farrow noted that J.P.’s lungs sounded clear, and no
wheezing was detected. (Id.) She noted that his skin was dry, and had fissuring with
scabs and cracking on his face, scalp, neck, chest, back, stomach, hands, arms, legs, and
tops of his feet. (Tr. 362.)
On March 8, 2013, plaintiff was seen by Susan Bayliss, M.D., a pediatric
dermatologist, for a rash on his face and body. (Tr. 369.) Dr. Bayliss diagnosed him
with eczema and a bacterial “superinfection.” (Tr. 370.) She noted scaly plaques and
crusting and his face and body. (Id.)
On April 11, 2103, plaintiff was seen by Dr. Bayliss for a follow up. (Tr. 367-71.)
Dr. Bayliss noted that in her opinion, J.P. suffered from no pain, and only mild pruritus
(itching). (Tr. 367.) She noted that his eczema was much improved from his last visit,
and he was experiencing much less itchiness, although he still had significant disease on
his skin, specifically noting scaly pink patches on his face, neck, and elbows. (Tr. 371.)
III. ALJ HEARING
On May 1, 2013, a hearing was conducted before an ALJ. (Tr. 26-43.) Plaintiff
was represented by counsel and his father, Jeffrey Pannell, testified to the following. He
is the father of claimant, J.P., who was then four years old and who had lived with him
and been under his care his whole life. J.P.’s mother and four sisters also live in the
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household with them. Mr. Pannell testified that eczema, asthma, and some allergies were
the problems J.P. was having that initially made him decide to apply for disability for
him. (Tr. 31-32.)
He has had problems with eczema since the age of four months. The eczema
causes itching, scratching, and sometimes causes J.P. to have problems walking due to
the itching and scratching. It is a constant problem. Since J.P. was four months old, he
has never been free of rash for any period. The rash affects him all over his body, and
does not tend to be worse in certain areas. The rash does fluctuate, but J.P. usually has
rash everywhere. He can tell by looking when J.P has an outbreak. It looks like a big red
rash, and itches badly. (Tr. 32-33.)
When J.P. has a flare up, Mr. Pannell treats it with cream, Vaseline, and
sometimes steroid medication. The doctor typically prescribes J.P. the steroid medication
about once every six to eight weeks. The steroid medication helps sometimes, but has the
side effects of irritability, crankiness, and mood swings. Mr. Pannell attributes this to J.P.
not liking to take the medication. J.P. also sometimes gets mad or mean and wants to
fight with his sisters when he takes the steroid medication. He also gets up every
morning in a cranky mood when taking steroids, but his mood fluctuates from one minute
to the next. (Tr. 33-34.)
He has not noticed anything that tends to aggravate J.P.’s eczema. When J.P. goes
outside during the summer, it causes him to sweat, which makes the rash burn and
exacerbates the itching. Because of this, they do not allow J.P. to stay outside for more
than a one and a half to two hour period during the summer. When J.P. is exposed to
direct sunlight, or even shade during the summer, he still sweats, which causes itching
even when sitting still. (Tr. 34.)
The rashes cause J.P. pain. The most recent instance of J.P. mentioning he had
pain, the rash was on his feet and legs. He also sometimes has a hard time sitting down
due to pain when he has rash under his buttocks. When J.P.’s feet break out, they get dry
and crack open during the summer. This causes him problems with walking, and he
sometimes has to walk on his tip toes. When the rash affects his legs and feet, J.P. is
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unable to wear socks and shoes because doing so causes him to walk sideways or on the
sides of his feet due to the pain. (Tr. 34-35.)
J.P. also gets rashes on his hands quite often. This causes them to itch, and when
he scratches the rash, the skin opens up which causes scabbing and can cause infection.
When his hands are affected, he is unable to do his normal activities around the house
because his hands hurt too badly. His hands and fingertips crack open and he is unable to
pick things up like most children are able to do. When the skin on his fingers is cracked,
he cannot pick up and play with small toys. J.P. often gets rashes on his head and his
face also. When he does, he asks his parents if they are going to put cream or Vaseline
on him, or what they are going to do. (Tr. 35-36.)
The rashes affect his bathing as well. J.P. can get in the water, but cannot use soap
or other products because it dries out his skin. He says the water burns him when he is in
the bath, and when he gets out and is being dried off, it continues to burn. (Tr. 36.)
When his fingers and hands are affected, J.P. is unable to hold a toothbrush, but
when they are not affected, he can. Although he currently has no hair, the same was true
of using a hairbrush to brush his hair when he did have hair. J.P. also sometimes has
problems cleaning himself when he uses the restroom. (Tr. 37.)
On an average day around the house, J.P. likes to play with toys. He also likes to
play outside, but it is hard for him to do so when it is hot outside. (Id.)
J.P also has a problem with asthma. Asthma has been a problem for him for about
the last two to two and one half years. It bothers him a couple of times per month. This
necessitates his parents giving him breathing treatments. (Tr. 37-38.)
J.P. has a nebulizer, which he uses two to three times monthly. Playing outside for
a couple hours at a time leads to wheezing, at which point his parents bring him inside
and administer either a breathing treatment or inhaler spray. He uses the inhaler twice
daily. About three months ago, J.P.’s doctor switched the type of inhaler he uses. The
doctor said they switched inhalers because the new inhaler was stronger, and the doctor
believed it would be more effective. (Tr. 38.)
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Apart from being active, some allergies also trigger J.P.’s asthma. He is allergic to
peanuts, all dairy products, eggs, and red dye. He is also not supposed to have any
chocolate. J.P. is also allergic to pollen, walnut trees, ragweed, and a couple other things
that Mr. Pannell is unable to recall. J.P. does have an understanding of things he is
supposed to avoid because of his allergies. He has never had an accident with any of the
foods he is allergic to because his parents do not allow him to have them. When he is
outside of the home, J.P. asks about things he can or cannot have. He asks what certain
items contain or whether they contain milk, or whether bread is regular or wheat. J.P.’s
parents still have to monitor what he eats, though. (Tr. 38-40.)
J.P. does not stay overnight at anyone else’s home because his parents are afraid
someone may not be up-to-date on his problems and may give him something he is
allergic to. He has never been to a day camp or summer camp, but his parents are
planning to let him play T-ball this summer to see how he does.
He has never
participated in other activities, such as Boy Scouts or a church group. (Tr. 40.)
As for treatment for J.P.’s eczema going forward, doctors have advised his parents
that all they can do for now is apply the creams three to four times daily, makes sure to
administer Vaseline, and not give him anything to eat or drink that he is allergic to. (Id.)
J.P. does not apply cream to himself. His parents have tried to get him to, but he
says that he cannot do it because it burns too badly. He asks his mother to put it on
instead. (Tr. 40-41.)
The ALJ then asked Mr. Pannell questions, to which he testified to the following.
There was a referral for J.P. to Saint Louis dermatology, which he has been to twice. He
was seen there by Dr. Bayliss, who advised them not to use any soap or shampoo on him,
and to use the prescribed cream three times daily, while using Vaseline in between.
Additionally, Dr. Bayliss advised them to add a quarter cup of bleach in his bath water.
She also wanted to see J.P. for a follow-up later in the month. Mr. Pannell has not seen
any change since they started doing what Dr. Bayliss suggested. (Tr. 41-42.)
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IV. DECISION OF THE ALJ
On June 4, 2013, the ALJ issued a decision finding that plaintiff was not disabled.
(Tr. 9-25.) The ALJ found that plaintiff had not engaged in substantial gainful activity
since August 10, 2011, the application date. The ALJ found that plaintiff had the severe
impairments of eczema and asthma. However, the ALJ found plaintiff did not have an
impairment or combination of impairments that meet, medically equal, or functionally
equal to ones contained in the listings, 20 C.F.R. part 404, subpart P, appendix 1. (Tr.
In determining whether J.P.’s impairments functionally equaled a listing, the ALJ
found that J.P. had no limitations in the domains of acquiring and using information and
of moving about and manipulating objects; he had “less than marked” limitations in the
domains of attending and completing tasks, of interacting and relating with others, and of
caring for yourself; and, “marked” limitations in the domain of health and physical wellbeing. (Tr. 17-21.)
V. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and
are supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner’s decision. Id. As long
as substantial evidence supports the decision, the court may not reverse merely because
substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeirer v. Barnhart,
294 F.3d 1019, 1022 (8th Cir. 2002).
A child is “disabled for purposes of SSI if that individual has a medically
determinable physical or mental impairment, which results in marked and severe
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functional limitations” that have lasted or can be expected to last for at least twelve
months or result in death. 42 U.S.C. § 1382c(3)(C)(i).
A four-step regulatory framework is used to determine whether a child is disabled.
The steps require the claimant to prove (1) he is not currently engaged in substantial
gainful activity; (2) he suffers from a severe impairment; (3) his condition meets or
equals a listed impairment; and, (4) if not, do his impairments “functionally equal” a
listed impairment. 20 C.F.R. § 416.924(a); 20 C.F.R. pt. 404, subpt. P, app. 1, pt. B;
Walker v. Apfel, 141 F.3d 852, 854 (8th Cir. 1998).
The inquiry only proceeds to step four, the “functional equivalence” step, if the
ALJ finds that (1) the child is not engaged in substantial gainful activity; (2) the child has
an impairment or combination of impairments that is severe; and (3) those impairments
do not meet or medically equal a listed impairment.
Once the ALJ reaches the
“functional equivalence” step, the ALJ considers how the child’s impairment, or
combination of impairments, has affected his abilities within six broad domains of
functioning. Together, these domains are “intended to capture all of what a child can or
cannot do.” 20 C.F.R. § 416.926a(b)(1). The six domains are: (1) acquiring and using
information; (2) attending and completing tasks; (3) interacting and relating with others;
(4) moving about and manipulating objects; (5) caring for yourself; and, (6) health and
physical well-being. (Id.)
A child’s impairments will be found to “functionally equal” a listed impairment if
they cause the child to have “marked” limitations in at least two of the domains, or an
“extreme” limitation in at least one domain. 20 C.F.R. § 416.926a(d). A child has a
“marked” limitation in one of these domains when his “impairment(s) interferes seriously
with his ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(2)(i); see also Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 651 (8th Cir.
2004) (quoting § 416.926a). Likewise, a child has an “extreme” limitation when his
“impairment(s) interferes very seriously with his ability to independently initiate, sustain,
or complete activities.”
20 C.F.R. § 416.926a(e)(3).
There may be “marked” or
“extreme” limitations in only one activity, or in several activities as a result of the
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interactive and cumulative effects of the child’s impairments.
To determine whether the child is experiencing “marked” or
“extreme” limitations in the domains, the ALJ must review all the evidence in the record,
and compare the child’s functioning to “the typical functioning of children [the child’s]
age who do not have impairments.” 20 C.F.R. § 416.926a(f)(1); see also 20 C.F.R.
§ 416.924a(b)(5)(ii); 20 C.F.R. 416.926a(b). The ALJ considers “the effects of structured
or supportive settings,” how the child functions in school, and the effects of the child’s
medications, if any. 20 C.F.R. § 416.926a(a)(1)-(3). Finally, in determining a child’s
disability, the ALJ must consider all relevant evidence, which may include medical
evidence and information from people who know the child, such as parents and teachers,
who can provide evidence about his functioning. 20 C.F.R. § 416.924a(a).
Plaintiff claims that the ALJ erred by (1) neglecting to provide a credibility
analysis regarding the testimony of J.P.’s father, Jeffrey Pannell; and, (2) failing to
adequately consider whether or not J.P.’s impairment of eczema met or equaled Listing
108.04. On the second point, the court agrees.
A. Credibility Analysis
The plaintiff argues that the ALJ failed to conduct a credibility analysis regarding
J.P.’s father Jeffrey Pannell, but is required to do so by 20 C.F.R. § 416.928(a). The court
If the child claimant is unable to adequately describe his symptoms, the ALJ must
accept the testimony of the person most familiar with the child’s condition. 20 C.F.R.
§ 416.928(a). While 20 C.F.R. § 416.928(a) makes no mention of a credibility analysis,
it has long been held that when rejecting a claimant’s testimony, the ALJ must make an
express credibility determination detailing her reasons for discrediting the testimony.
Ricetts v. Sec’y of H.H.S., 902 F.2d 661, 664 (8th Cir. 1990). The Tenth and Second
Circuits have also extended this requirement to cases involving uncontradicted witness
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testimony, holding that a “finding that the witness is not credible must nevertheless be set
forth with sufficient specificity to permit intelligible plenary review.” Briggs ex rel. v.
Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001); Martins v. Chater, 112 F.3d 504, 504
(2d Cir. 1996) (citing Williams v. Bowen, 859 F.2d 260-61 (2d Cir. 1988). “The failure
to make credibility findings regarding the [mother's] critical testimony fatally undermines
the Secretary's argument that there is substantial evidence adequate to support his
conclusion that claimant is not under a disability.” Briggs ex rel., 248 F.3d at 1239.
Here, however, the ALJ did not reject Mr. Pannell’s testimony. The ALJ made
note of Mr. Pannell’s testimony at several points in her opinion, even noting a finding of
a marked limitation in the domain of health and physical well-being after taking “strong
consideration of the claimant’s father’s testimony.” (Tr. 16, 18, 21.) The ALJ also
mentioned giving less weight to the Childhood Disability Evaluation Form completed by
a State agency medical consultant, because the consultant did not have the benefit of
examining the evidence from the 18-20 months prior to her examination of J.P. (Tr. 16.)
The opinion of a treating physician is normally entitled to great weight. Singh v.
Apfel, 222 F.3d 448 (8th Cir. 2000) (saying treating physician given “controlling weight”
if substantiated by the record); see also 20 C.F.R. § 404.1527(d)(2). J.P.’s primary care
physician, Dr. Bayliss, reported that J.P. had no functional limitations, no side effects
from medication, no pain, and only mild pruritus symptoms in a functional assessment
she completed in April 2013. (Tr. 367.) Given Mr. Pannell’s lack of medical training, it
was within the purview of the ALJ to accord more weight to the opinion of Dr. Bayliss
than to Mr. Pannell. It does not then follow that the ALJ discredited Mr. Pannell’s
B. The Listings
Plaintiff also argues that the ALJ failed to properly consider whether or not J.P.’s
severe impairment of eczema met or equaled Listing 108.04. The court agrees.
Listing 108.04 requires a finding that a claimant have chronic infections of the
skin or mucous membranes, with extensive fungating or extensive ulcerating skin lesions
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that persist for at least three months despite continuing treatment as prescribed. 20
C.F.R. Pt. 404, Subpt. P., App. 1. At Step Three of her analysis, the ALJ concluded that
J.P.’s impairments did not meet, medically equal, or functionally equal the severity of
any listed impairment. (Tr. 15.) As a result, the ALJ continued to Step Four, and denied
J.P.’s claim for benefits. In concluding that J.P.’s impairment did not meet or medically
equal any listed impairment, the ALJ never mentions Listing 108.04 or any other listing.
Plaintiff contends that substantial evidence in the record supports the conclusion that J.P.
met or medically equaled the listed impairment for Listing 108.04.
Generally, an ALJ’s failure to adequately explain her factual findings is not a
sufficient reason for setting aside an administrative finding where the record supports the
overall determination. Pepper v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003); see also
Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999). However, the Eighth Circuit has
also held that a remand is required where the ALJ’s conclusions, considered in light of
the record as a whole, are insufficient to permit a finding by the court that substantial
evidence supports the Commissioner’s decision. Pettit v. Apfel, 218 F.3d 901, 903-04
(8th Cir. 2000); see also Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005). Both of
these cases were remanded because the court deemed the ALJ’s factual findings to be
inadequate for meaningful judicial review. In Chunn, the ALJ failed to reference the
listing for the impairment that he had already concluded the claimant had. 397 F.3d at
671. Because of this, the court held that it was unable to reach a conclusion as to whether
substantial evidence supported the finding that the claimant did not meet or medically
equal a listing, and remanded the case. Id. at 672. In the case at bar, nothing in the
ALJ’s decision indicates that she considered specifically whether plaintiff’s symptoms
medically equaled Listing 108.04. Instead, the ALJ’s decision speaks only in general
terms about considering all of the relevant evidence. The ALJ describes the evidence she
considered in her discussion about whether J.P.’s impairments functionally equals a
listing; however, the ALJ failed to support her finding that J.P. did not meet or medically
equal the severity of a listed impairment. The record contains inconsistencies regarding
how extensive and severe plaintiff’s eczema is. (Compare Tr. 32-33, 179, 186, 188, 205,
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292, 362, 371 with 261, 288, 367, 371.) As a result, the court is unable to determine
whether substantial evidence supports the ALJ’s finding that J.P.’s impairments did not
meet or medically equal Listing 108.04.
The court concludes that the ALJ failed to properly consider whether J.P.’s
impairments meet or medically equal Listing 108.04. Accordingly, for the reasons set
forth above, this case is remanded to the ALJ to consider and specifically address
whether J.P.’s impairments meet or medically equal Listing 108.04. An appropriate
Judgement Order is issued herewith.
/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on August 17, 2015
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