Banks v. Colvin
MEMORANDUM OPINION denying 16 Cross MOTION for Summary Judgment Social Security appeal, granting 14 Cross MOTION for Summary Judgment and Memorandum in Support of Cross-Motion for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)
United States District Court
Southern District of Texas
May 08, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
NANCY A. BERRYHILL,1
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION, §
David J. Bradley, Clerk
ANGELA BANKS, o/b/o D.H.,
CIVIL ACTION NO. H-16-1302
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment (Doc. 14).
The court has considered the motions, the
responses, the administrative record, and the applicable law.
the reasons set forth below, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s motion.
Angela Banks, on behalf of D.H. (“Plaintiff”), filed this
action pursuant to 42 U.S.C. §§ 405(g) for judicial review of an
unfavorable decision by the Commissioner of the Social Security
Carolyn W. Colvin was the Commissioner of the Social Security
Administration at the time that Plaintiff filed this case but no longer holds
that position. Nancy A. Berryhill is Acting Commissioner of the Social Security
Administration and, as such, is automatically substituted as Defendant. See Fed.
R. Civ. P. 25(d).
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 17, Ord. Dated
Aug. 29, 2016.
Plaintiff’s claim for supplemental security income under Title XVI
of the Social Security Act (“the Act”).3
D.H. was born on December 22, 2003, and was eight years old on
September 12, 2012, the date the application was filed.4
diagnosed with asthma when he was eighteen months old.5
alleged disability onset date was December 22, 2003, the day D.H.
D.H. was hospitalized from January 14, 2010, to January 16,
2010, after displaying symptoms of shortness of breath, fever,
cough, and congestion.7
It was noted that D.H. had not taken his
medication for a week.8
Upon discharge, D.H.’s condition had
improved; D.H. was instructed to continue with albuterol nebulizer
On January 24, 2011, D.H. saw Gabriel Neal, M.D. (“Dr. Neal”)
to treat his asthma.10
D.H. was experiencing trouble breathing, a
See Doc. 1, Pl.’s Compl.
See Tr. 13.
See Tr. 280, 381.
See Tr. 159.
See Tr. 331-34.
See Tr. 331.
See Tr. 334.
See Tr. 300-01.
cough, and wheezing, and Dr. Neal found that D.H. had asthma with
corticosteroid, for five days.12 On March 10 and 28, 2011, Dr. Neal
again diagnosed D.H. with asthma with acute exacerbation.13
these appointments, D.H. reported that he was experiencing the same
symptoms which resulted in missed school, and D.H. was prescribed
exacerbation of D.H.’s symptoms occurred when he had an allergic
reaction, when seasonal allergies were triggered, or when he had a
D.H. also sought treatment from Dr. Barry R. Paull, M.D.,
(“Dr. Paull”) of the Allergy Associates of the Brazos Valley.16
Pulmonary function tests performed by Dr. Paull on March 21, 2011,
“showed marked decline in both small and large airway flows with
marked improvement post bronchodilator” which Dr. Paull stated was
“indicative of severe reactive airway disease.”17
D.H. was also
tested for allergies, and the results showed reactions to a variety
of environmental allergens, including dust mites, mold, and weed
See Tr. 300.
See Tr. 296-99.
See Tr. 305-06.
and tree pollens.18 Dr. Paull diagnosed D.H. with severe asthma and
recommending a course of immunotherapy to treat his allergies.19
Siby Moonnumakal, M.D., (“Dr. Moonnumakal”), a pulmonologist
at the Texas Children’s Hospital Pulmonary Medicine and Asthma
Center, saw D.H. on April 28, 2011.20 D.H. was wheezing at the time
of the appointment and reported that he was coughing during the
night and was experiencing weekly asthma attacks.21
subsided when given a breathing treatment.22
D.H. participated in
activities such as soccer, basketball, and football, but “had
trouble running and playing” and had not tried using a breathing
treatment prior to exercise.23
D.H.’s lung function was assessed
with a spirometry, which revealed a “severe obstruction with a
Accordingly, Dr. Moonnumakal concluded that D.H.’s asthma “seem[ed]
moderate-severe” and that it “ha[d] been poorly controlled.”25 D.H.
was prescribed prednisone for five days but was told to discontinue
See Tr. 302-04.
See Tr. 302.
taking it if his symptoms improved.26
On August 24, 2011, D.H. visited Dr. Neal for a health checkup, where it was reported that D.H. had no problems at school and
that he partook in organized sports, including basketball and
D.H. presented to David Damian, M.D., (“Dr. Damian”) on
December 9, 2011, with acute exacerbation of his asthma over the
previous few days, including symptoms of wheezing and coughing.28
D.H. was prescribed Medrol, a corticosteroid.29
On December 12, 2011, D.H. returned to Dr. Neal complaining of
acute exacerbation of his asthma.30
Dr. Neal noted that D.H. was
having difficulty breathing due to his respiratory allergies and
his noncompliance with taking Xopenex, but found that his breathing
was “non-labored” and that both lungs sounded clear.31
reported that he was coughing to the point of vomiting at night.32
On March 1, 2012, D.H. returned to Dr. Moonnumakal and stated
that he sometimes missed school or left early due to coughing.33
See Tr. 293-94.
See Tr. 291-92.
See Tr. 291.
See Tr. 289.
See Tr. 266.
D.H. reported that he played basketball, but needed his inhaler
frequently while playing.34
Additionally, D.H. would have bouts of
“on and off coughing and wheezing.”35
When D.H. woke up in the
morning, he experienced sneezing and mucus.36
At this appointment,
D.H.’s lungs sounded clear with no respiratory distress.37
effectively control D.H.’s symptoms which included altering his
medication, avoiding tobacco smoke and air pollution, and promoting
smoking cessation by his mother.39
On March 22, 2012, Dr. Paull noted that D.H.’s symptoms were
“occasional flare-ups” with symptoms of wheezing and shortness of
breath “when it rain[ed].”40
On May 22, 2012, D.H. sought emergency treatment at St. Joseph
See Tr. 267.
D.H. was found to have no symptoms of respiratory
distress or wheezing.42
D.H. was discharged the same day.43
On September 7, 2012, D.H. went to the hospital because of
Angela Banks, D.H.’s mother, (“Banks”)
explained that they had tried albuterol nebulizer treatments and
inhaler with little success.45
It was noted that D.H. had been
hospitalized three times for asthma attacks, but not during the
Banks reported that D.H. had been receiving
allergy shots twice a week, visited his primary care physician five
or six times in the preceding year, and had been prescribed oral
corticosteroids at each of those appointments.47
D.H. showed signs of respiratory distress, including wheezing, and
was diagnosed with rhinovirus and asthmaticus.48
D.H. was discharged from the hospital on September 10, 2012,
and was readmitted on September 11, 2012, after experiencing
“worsening of his status asthmatic state.”49
See Tr. 336-39.
See Tr. 337.
See Tr. 338.
See Tr. 276-82.
See Tr. 280.
See Tr. 277.
See Tr. 278, 280.
An examination of
D.H.’s lungs showed bilateral coarse wheezing.50
with these hospitalizations, D.H. underwent two x-rays of his
hyperinflation; on September 11, 2012, an x-ray showed lungs that
were “well expanded and clear.”52
D.H. was treated using steroids,
nebulizer treatments, and oxygen, and was discharged on September
On September 27, 2012, D.H. visited Alma Chavez, M.D., (“Dr.
Chavez”), a pulmonologist, as a follow-up to his hospitalization.54
Dr. Chavez noted that D.H. was frequently absent from school and
that he would wake up several times every night due to his asthma.55
On this date, a spirometry was performed that was “normal . . .
without evidence of air flow limitation.”56
Dr. Chavez concluded
that D.H. had “moderate to severe persistent asthma.”57
D.H. returned to Dr. Chavez on October 25, 2012, where D.H.
reported that he had not been absent from school since the last
See Tr. 308.
See Tr. 322-23.
See Tr. 309.
See Tr. 381-84.
See Tr. 381.
appointment, and that there had been “a significant improvement in
The new treatment prescribed by Dr. Chavez
allowed D.H. to sleep through the night.59
As a result, he only
experienced coughing or mucus in the morning.60
report was normal with “no significant changes” from the test
performed a month earlier.61
D.H. continued to visit Dr. Neal regarding his asthma in late
2012 and early 2013.
On December 17, 2012, D.H. was instructed to
continue taking Advair, a medication that his mother believed had
been discontinued.62 D.H.’s symptoms included wheezing and coughing
at night, two-to-three times per week.63
prednisolone for twelve days.64
Dr. Neal prescribed
At D.H.’s appointment on January
11, 2013, Dr. Neal classified D.H.’s asthma as “[m]ild persistent,”
and it was reported that D.H. was only experiencing symptoms when
he exercised.65 On January 21, 2013, D.H. reported to Dr. Neal that
his symptoms were “normally controlled” but that he had experienced
symptoms over the previous weekend, including coughing at night and
See Tr. 387.
See Tr. 401.
See Tr. 399.
D.H. was diagnosed with an asthma exacerbation and
prescribed prednisolone for seven days.67
On May 8, 2013, D.H.
stated that he was experiencing his symptoms, which included
coughing at night, at a rate of two-to-three times a week.68 D.H.’s
lungs sounded clear with a prolonged expiratory phase; D.H. was
Dr. Paull performed a pre-bronchodilator spirometry test on
September 3, 2013, which revealed a FVC value of 1.25 and a FEV1 of
D.H.’s FEV1 was forty-six percent of his predicted value of
D.H. was experiencing difficulty breathing and not tested
post-bronchodilator at this appointment.72
Dr. Paull continued to
treat D.H. for allergies, noting on September 9, 2013, that he
should resume twice-weekly allergy shots.73
D.H. presented at the emergency room at St. Joseph’s Regional
Health Center on September 18, 2013, due to asthma exacerbation.74
See Tr. 438.
See Tr. 499.
See Tr. 496, 499.
See Tr. 487.
See Tr. 452-57.
D.H. was diagnosed with asthma and seasonal allergies, prescribed
prednisone for five days, and discharged.75
D.H. returned to the
emergency room at St. Joseph’s on November 19, 2013, complaining of
chest tightness, wheezing, and a cough.76
Upon examination, it was
found that he had wheezing and a cough, but showed “no signs of
D.H. was treated with nebulizers and
steroids, which improved his condition, and he was diagnosed with
asthma with bronchitis.78
D.H. was prescribed a ten-day course of
The records provided from Bonham Elementary, from August 27,
2012, through February 1, 2013, reflect that D.H. was tardy ten
times, left early eleven times, was absent with no excuse eight
times, and was absent with an excuse eleven times.80
In his health
records, his medications were listed, with the instruction that
Xopenex and Advair were to be given on an as-needed basis.81
records also reflected several nurse’s office visits from August
See Tr. 456.
See Tr. 445-51.
See Tr. 450.
See Tr. 451.
See Tr. 359, 410-11.
See Tr. 360.
31, 2012, through October 2, 2012, where he was either dismissed to
his mother or sent back to class.82
In the first half of the 2012-2013 school year, D.H.’s grades
ranged from Cs to As.83 Some of his teachers noted that his conduct
By the end of the year, D.H. had passing grades and
was promoted to fourth grade.85
Behavioral records showed that he
had altercations with several other students throughout the school
On January 31, 2014, when D.H. was in fourth grade, a Section
504 report was completed by a committee.87
The report highlighted
D.H.’s asthma, which the committee found to “substantially limit”
his learning abilities.88
Due to his asthma, D.H. was given
accommodations including extended testing time, peer assistance,
and re-teaching of difficult concepts.89
The committee found that
D.H. needed these accommodations due to his lower-than-usual grades
See Tr. 361.
See Tr. 412.
See Tr. 259.
See Tr. 413-14.
See Tr. 459-60.
See Tr. 460.
and frequent absences.90 His grade reports from June 2014 indicated
that D.H. was absent twenty-two days and received passing grades in
all of his classes for the 2013-14 school year.91
Application to Social Security Administration
income benefits on September 12, 2012.92
Disability and Function Reports
Banks completed disability reports on September 13, 2012, and
January 17, 2013, where she reported that D.H. had asthma.93
later disability report dated February 6, 2013, D.H.’s condition
was “worse” because he needed to resume steroids and his lungs were
The report disclosed that D.H. had to utilize his
inhaler in order to physically exert himself or participate in
physical education at school.95
In a disability report dated April
2, 2013, it was reported that D.H.’s health was declining, which
caused him to be frequently absent from school; additionally, he
still required his inhaler to participate in physical activities or
See Tr. 259.
See Tr 159-69.
See Tr. 182-90, 199-206.
See Tr. 207-14.
See Tr. 212.
spend time outside.96
On September 13, 2012, Banks submitted a function report.97
She reported that D.H. had no problems seeing, hearing, speaking,
communicating, learning, behaving properly, cooperating, taking
care of himself, or focusing.98
Banks addressed D.H.’s physical
condition, opining that his condition prevented him from running,
throwing a ball, or swimming, but that he could walk, ride a bike,
jump rope, roller skate, use scissors, work video game controls,
and dress or undress dolls or action figures.99
State Agency Reports
A state agency report was completed by Patricia Nicol, M.D.,
(“Dr. Nicol”) on November 30, 2012, in conjunction with the initial
Dr. Nicol found that D.H.’s asthma was a severe,
medically determinable impairment, but it did not meet or medically
equal Listing 103.03.101
In the evaluation of D.H.’s functional
equivalency, Dr. Nicol determined that he had a marked limitation
in the domain of health and physical well-being, but no limitations
See Tr. 227.
See Tr. 171-81.
See Tr. 171-78.
See Tr. 175.
See Tr. 74-82.
See Tr. 78.
in the other domains.102
Therefore, Dr. Nicol concluded that D.H.
did not functionally equal the Listings of the regulations103 (the
“Listings”) and was found not disabled.104
Another state agency report was completed in conjunction with
the reconsideration by Monica Fisher, M.D., (“Dr. Fisher”) on
February 27, 2013, where she also found that D.H.’s asthma was a
severe, medically determinable impairment that did not meet the
Dr. Fisher came to this conclusion because D.H. did
not have enough hospital or emergency room care, he did not have a
baseline wheeze, or documentation showing frequent steroid use.106
In terms of functional equivalency, Dr. Fisher concluded that D.H.
had no limitation in interacting and relating with others; less
than a marked limitation in the domains of acquiring and using
information, attending and completing tasks, moving about and
manipulation of objections, and caring for himself; and a marked
limitation in the domain of health and physical well-being, citing
his medical records.107
As a result, D.H. did not functionally
equal the Listing and was found not disabled.108
See Tr. 78-79.
20 C.F.R. Pt. 404, Subpt. P, App. 1.
See Tr. 79.
See Tr. 84-95.
See Tr. 92.
See Tr. 92-93.
Treating Doctors’ Evaluations
On August 7, 2013, Dr. Chavez completed a childhood disability
evaluation form.109 In evaluating the six domains, Dr. Chavez found
that D.H. had no evidence of a limitation in the domains of
acquiring and using information, attending and completing tasks,
interacting and relating with others, moving about and manipulating
objects, or caring for himself, but that he had a marked limitation
in the domain of health and physical well-being.110
discussed D.H.’s asthma, stating that: it was worse in the winter;
his spirometry showed normal FEV1 levels but a lower FEV1/FVC
ratio; when he was feeling well he could go to school and partake
in his physical education classes; his parents’ smoking “play[ed]
a role in his disease severity” and despite his treatments, he had
Dr. Chavez completed another childhood disability evaluation
form on March 27, 2014, where she made similar findings.112
again concluded that D.H. had a marked limitation in the domain of
health and physical well-being, but no limitation in any other
domain.113 In the evaluation, Dr. Chavez noted his “frequent urgent
See Tr. 441-42.
See Tr. 441.
See Tr. 468-69.
See Tr. 468.
emergency room visits” even though he was taking a variety of
medications daily and reported that his spirometry performed on
that date showed “mild to moderate obstruction with [an] FEV1/FVC
ratio of 68 [and an] FEV1 of 1.56.”114
Also on March 27, 2014, Dr.
Chavez completed a form where she considered whether D.H. met the
criteria described in the Listings for asthma.115
Dr. Chavez found
that he met Listing 103.03 for asthma because D.H. had attacks in
spite of prescribed treatment requiring physician intervention
occurring at least once every two months or at least six times a
year, where each inpatient hospitalization for longer than twentyfour hours counted as two attacks and it was evaluated on at least
a twelve-month consecutive basis.116 On August 12, 2014, Dr. Chavez
completed an onset date questionnaire, stating that she had treated
D.H. since September 27, 2012.117
Her opinion was based on direct
observation and treatment of D.H.118
Dr. Paull also completed a form on July 17, 2014, evaluating
whether D.H. met the Listing 103.03.119
Dr. Paull found that D.H.
met the Listing because he had asthma with a FEV1 equal to or less
See Tr. 471-72.
See Tr. 471.
See Tr. 505.
See Tr. 503.
than the value provided in the table.120
Tracy Wager (“Wager”) filled out a teacher questionnaire on
September 27, 2012.121
Wager saw D.H. during the entire school day
for all subjects other than music, art, and physical education.122
At the time of this questionnaire, D.H. was in third grade and was
performing at a third-grade level for reading, math, and writing.123
Wager reported no problems in domains of acquiring and using
relating with others, moving about and manipulating objects, and
caring for himself.124
In terms of the domain of health and
physical well-being, Wager wrote that D.H.’s asthma affected his
attendance and that he had missed nine days of school in the
Wager submitted another questionnaire on February 6, 2013,
See Tr. 191-98.
See Tr. 191.
See Tr. 191-96.
See Tr. 197.
Wager noted D.H.’s frequent absenteeism, stating that
he was sometimes absent for “weeks at a time.”127
In the domain of acquiring and using information, Wager found
that D.H. had both slight and serious problems, which Wager
attributed to D.H.’s absences that caused him to miss foundational
learning that was necessary to master before progressing to more
Wager evaluated D.H.’s functioning in the
area of attending and completing tasks, indicating that he had
daily slight, obvious, and serious problems.129
Due to D.H.’s
required visits to the school nurse for his breathing treatments,
it was difficult for D.H. to re-focus after he returned to the
classroom, and he became “easily distracted and very impatient” and
would “often rush through his work just to be done.”130
In terms of
interacting and relating with others, Wager did not indicate the
frequency of the problems that D.H. experienced, but reported that
he had slight, serious, and obvious problems in that domain.131
was noted that D.H. had been removed from the classroom a few times
due to his behavior and a behavior sheet was sent home every day.132
See Tr. 215-22.
See Tr. 217.
See Tr. 218.
Wager stated that D.H. was argumentative and easily angered when
there was a difference of opinion with another student.133
domain of caring for himself, Wager found that D.H. had slight and
D.H. would become easily frustrated, which
would result in difficulty paying attention to Wager’s re-teaching
of material, and “sometimes” D.H. would “shut down.”135
Wager noted that D.H. had issues with his health and physical
well-being, specifically, that he would visit the nurse’s office
for a nebulizer or inhaler treatment “several times a day.”136
Wager noted that D.H.’s medical treatment made him “very active”
and weather changes caused D.H. to be absent from school.137
On April 11, 2014, another one of D.H.’s teachers, Jean Wolff
(“Wolff”), completed a teacher assessment.138
Wolff reported that
D.H. experienced issues in five of the six domains.139
observed obvious, slight, and serious problems in the domains of
acquiring and using information, interacting and relating with
See Tr. 462-66.
See Tr. 462-64.
problems were witnessed in the domain of attending and completing
D.H. also would “give up and want ‘help’ often.”143
manipulating objects, D.H. had a very serious problem with moving
his body from one place to another and moving and manipulating
things, and a slight problem with managing the pace of physical
activities or tasks, showing a sense of his body’s location and
movement in space, integrating sensory input with motor output, and
planning, remembering, and executing controlled motor movements.144
In the domain of health and physical well-being, Wolff noted that
D.H. had asthma, but it “[did not] really interfere with his
success at school.”145
D.H. took medication on a regular basis and
utilized a nebulizer or inhaler for his treatments.146
not answer the question of whether D.H. frequently missed school
because of his illness.147
See Tr. 464.
See Tr. 465.
See Tr. 463.
D.H. requested a hearing before an
The ALJ granted D.H.’s request and conducted a
hearing on August 15, 2014, in Houston, Texas.150
D.H. testified that he was ten years old and about to begin
the fifth grade.153
In fourth grade, he earned A’s and B’s in his
D.H. stated that his asthma limited his ability to play
sports, but he enjoyed basketball and football.155
Because it was
difficult for him to be outside, he and his friends normally played
video games or watched movies inside.156
D.H. also enjoyed reading
D.H. lived with his mother and brother, and he also had
See Tr. 74-96, 102, 108-11.
See Tr. 112-18.
See Tr. 53-73.
See Tr. 53-55.
See Tr. 56.
See Tr. 57.
See Tr. 57-58.
See Tr. 58.
a sister who lived in Austin.158
In response to his representative’s questioning, D.H. told the
ALJ that he would leave school early a few days every week due to
D.H. testified that he missed ten to fifteen days of
school per month due to his asthma.160
Sometimes, D.H. would wake
up in the middle of the night having difficulty breathing.161
treatments or would use his inhaler.162
If the breathing treatment
was effective, D.H. would go to school.163
If his treatments were
emergency room visits happened about once or twice a year.165
D.H. also explained that he would visit the school nurse to
use his hand-held inhaler twice a day.166
If the inhaler did not
work, then he would get a breathing treatment.167
that he utilized this type of breathing treatment around six times
See Tr. 59.
See Tr. 60.
See Tr. 60-61.
See Tr. 61.
See Tr. 60.
See Tr. 61-63.
D.H. testified that he and his mother both carried
D.H. stated that there were a few times each week
where he required two treatments170 in order to help him breathe.171
The ALJ also questioned Banks about D.H.’s living situation
and his asthma.172
Banks testified that their household consisted
of herself, D.H., and her other son, who was sixteen at the date of
Her older son would help D.H. with his asthma
treatment when she was at work.174
Banks was a smoker.175
During the 2013-2014 school year, Banks testified that D.H.
missed ten to fifteen days of school due to his asthma.176
According to D.H.’s teachers, D.H. would frequently cough in
However, D.H. could take care of himself and get along
See Tr. 62-63.
See Tr. 63.
In D.H.’s testimony, “breathing treatment” appears to be used
interchangeably between some sort of treatment he said that he only did six times
a year and using another type of treatment he used frequently at night.
See Tr. 64.
See Tr. 66.
See Tr. 66-67.
See Tr. 68.
See Tr. 67.
See Tr. 71.
Banks stated that D.H. had been treated with allergy shots,
but due to limited insurance coverage, he could no longer receive
result, Banks noticed that D.H.’s condition was
worse in the preceding five months, with new symptoms such as red
eyes and a runny nose.180
Banks also testified that, as a side effect to his medication,
D.H. experienced minor vomiting and swallowing episodes.181
had difficulty catching his breath, on average, once or twice a
D.H. went to the doctor about once a month and underwent
spirometry tests twice a year.183
The ALJ found that D.H. was a school-aged child at the
time of filing and at the date of the decision, had not engaged in
substantial gainful activity during the relevant period, and had a
severe impairment, chronic asthma.185 Plaintiff’s severe impairment
did not meet or medically equal any of the disorders described in
See Tr. 67.
See Tr. 68-69.
See Tr. 69.
See Tr. 70.
See Tr. 10-25.
See Tr. 13.
In particular, the ALJ considered Listing 103.03
in connection with Plaintiff’s asthma.187 The ALJ discussed Listing
103.03188 in great detail, addressing the criteria of that Listing,
which required asthma, with either:
A. FEV1 equal to or less than the value specified in
Table I of 103.02A; Or
B. Attacks (as defined in 3.00C) in spite of prescribed
treatment and requiring physician intervention, occurring
at least once every two 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 twelve consecutive months
must be used to determine the frequency of attacks; Or
C. Persistent low-grade wheezing between acute attacks or
absence of extended symptom-free periods requiring
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
2. Short courses of corticosteriods that average
more than five days per month for at least three
months during a twelve month period; Or
See Tr. 13-14.
The criteria for Listing 103.03 was updated in 2016 , with an
effective date of March 27, 2017. See Revised Medical Criteria for Evaluating
Respiratory System Disorders, 81 Fed. Reg. 37138, 37140 (Oct. 7, 2016)(to be
codified at 20 C.F.R. 404, Subpt. P, App. 1); 20 C.F.R. 404 Subpt. P., App. 1.
Listing 103.03 now requires “[a]sthma with exacerbations or complications
requiring three hospitalizations within a 12-month period and at least 30 days
apart (the 12-month period must occur within the period we are considering in
connection with your application or continuing disability review).
hospitalization must last at least 48 hours, including hours in a hospital
emergency department immediately before hospitalization.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, 103.03. When referring to the Listing throughout this opinion,
the court will be referring to the Listing criteria that were effective as of the
date of the ALJ’s opinion.
D. A growth impairment as described under the criteria
The ALJ found that there was no evidence of attacks, a growth
impairment, or low grade wheezing or absence of extended symptomfree periods requiring the use of bronchodilators with one of the
required criteria in 103.03C.190
Additionally, the ALJ looked at
Plaintiff’s spirometry test from September 2013, to see if he met
the FEV1 level, but discredited the findings because the test was
not performed while Plaintiff was stable and no post-bronchodilator
testing was done.191
Because Plaintiff’s impairment did not meet or medically equal
the Listing, the ALJ considered whether Plaintiff’s impairment
functionally equaled the severity of the Listing.192 In making this
determination, the ALJ discussed Plaintiff’s alleged symptoms,
medical treatment, school records, teacher questionnaires, and
Plaintiff’s symptoms, the ALJ first evaluated whether a medically
determinable impairment could be reasonably expected to produce the
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2014); Tr. 13.
See Tr. 13.
See Tr. 13-14.
See Tr. 14-24.
See Tr. 14.
persistence, and limiting effects of [Plaintiff’s] symptoms to
functioning,” making a credibility finding for those symptoms that
were not substantiated by objective medical evidence.195
Regarding Plaintiff’s symptoms, the ALJ discussed Plaintiff’s
breathing issues, treatments, and the resulting attendance issues
at school.196 The ALJ concluded: “After considering the evidence of
determinable impairment could reasonably be expected to produce the
alleged symptoms; however, the statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
credible for the reasons explained below.”197
In support of this
conclusion, the ALJ stated that the “record fails to support the
allegations of ongoing and disabling symptoms associated with
She found that there was no medical evidence that
Plaintiff’s asthma required repetitive emergency treatment or
The ALJ also noted Plaintiff’s noncompliance
See Tr. 14-15.
See Tr. 15.
treatment, including records from: the January 2010 and September
2012 hospitalizations; the May 2012, September 2013, and November
2013 emergency room visits; and the 2011-2013 doctor visits to
treat his asthma.201
Additionally, the ALJ discussed Plaintiff’s
school records reflecting his absences and grades.202
The ALJ considered opinion evidence submitted from Dr. Paull,
Dr. Chavez, and the state medical consultants.203
The opinion of
Dr. Paull was given little weight because, the ALJ wrote, it was
inconsistent with the record evidence as Dr. Paull failed to follow
the regulations in performing the spirometry test.204
and the state agency medical consultant’s opinions were given some
weight, but the ALJ found that the medical records did not support
some of their findings.205
In evaluating Plaintiff in the six functional equivalence
limitations in acquiring and using information, attending and
completing tasks, interacting and relating with others, moving
about and manipulating objects, and health and physical well-being,
See Tr. 16-19.
See Tr. 17-18.
See Tr. 18-24.
See Tr. 18.
See Tr. 18-19.
and no limitation in caring for himself.206
The ALJ considered
Plaintiff’s school records, statements from Plaintiff’s mother, and
opinions submitted from Plaintiff’s teachers.207
disability from September 12, 2012, through November 24, 2014, the
date of the ALJ’s decision.208
Plaintiff appealed the ALJ’s decision, and, on February 22,
2016, the Appeals Council denied Plaintiff’s request for review,
thereby transforming the ALJ’s decision into the final decision of
After receiving the Appeals Council’s denial,
Plaintiff sought judicial review of the decision by this court.210
Standard of Review and Applicable Law
The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: (1) the ALJ applied proper legal standards in evaluating
the record; and (2) substantial evidence in the record supports the
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
In order to obtain disability benefits, a claimant bears the
See Tr. 24-25.
See Tr. 1-6.
See Tr. 1-4; Doc. 1, Pl.’s Compl.
ultimate burden of proving he is disabled within the meaning of the
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
The regulations provide that a child’s disability claim should
be evaluated according to the following sequential three-step
process: (1) whether the child is engaged in substantial gainful
determinable impairment or combination of impairments that is
severe; and (3) if so, the child’s impairment or combination of
severity of a Listing.
See 20 C.F.R. § 416.924(b)-(d).
child’s impairment or combination of impairments meets or medically
equals the Listings, or functionally equals the Listings, and meets
the duration requirement, the child is considered disabled. See 20
C.F.R. § 416.924(d)(1).
At the third step of the analysis, the Commissioner looks at
whether a child’s severe impairment or combination of impairments
meets or medically equals any Listing. 20 C.F.R. § 416.924(b)-(d);
20 C.F.R. § 416.926a(a).
If the child’s impairment or combination
impairments do not, then the Commissioner decides whether the
functionally equals the Listing.
The Commissioner evaluates the
child’s ability to function in the following six domains: (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 oneself; and (6) health
and physical well-being.
See 20 C.F.R. § 416.926a(b)(1).
child’s impairment results in “marked” limitations in two domains
or an “extreme” limitation in one domain, that impairment is deemed
functionally equal to a Listing.
See 20 C.F.R. § 416.926a(a).
A “marked” limitation is one that seriously interferes with
20 C.F.R. § 416.926a(e)(2)(I).
than moderate” but “less than extreme.”
It is “more
A child is said to
have an “extreme” limitation if his impairment “interferes very
seriously with [his] ability to independently initiate, sustain, or
determining whether a child claimant has a “marked” or an “extreme”
limitation, the Commissioner must review all of the evidence of
record and “compare [the child’s] functioning to the typical
functioning of [same-aged children] who do not have impairments.”
20 C.F.R. § 416.926a(f)(1); see also 20 C.F.R. § 416.926a(b).
The widely accepted definition of “substantial evidence” is
“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).
It is “something more than a
scintilla but less than a preponderance.”
has the responsibility of deciding any conflict in the evidence.
If the findings of fact contained in the Commissioner’s
decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.
42 U.S.C. § 405(g);
Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
In applying this standard, the court is to review the
entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Brown v. Apfel, 192 F.3d 492, 496 (5th
In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
Plaintiff requests judicial review of the ALJ’s decision to
decision contains the following errors: (1) the ALJ failed to
properly weigh the medical evidence; and (2) the ALJ should have
functionally equaled a Listing.
Plaintiff argues that the ALJ erred by not properly weighing
the medical evidence, which resulted in a finding that Plaintiff
did not meet the Listing.
Plaintiff contends that the ALJ should
have found that he met either Listing 103.02A, 103.02B, 103.03B, or
Plaintiff contends that the spirometry test performed by Dr.
Paull in September 2013 should not have been rejected by the ALJ
because there was no requirement that Plaintiff be stable or that
the test be performed again post-bronchodilator.
The Listings do
require that a test be performed when a child is stable, but do
acknowledge that “[w]heezing is common . . and does not preclude
20 C.F.R. Pt. 404, Subpt. P, App. 1, 103.00B.
appendix to the regulations, it states that “[s]pirometry should be
repeated after administration of an aerosolized bronchodilator
bronchodilator is not administered, the reason should be clearly
stated in the report.”
20 C.F.R. Pt. 404, Subpt. P, App. 1,
At the time of the test, Plaintiff was experiencing some
breathing difficulties, as noted by Dr. Paull.
However, in the
spirometry report, Dr. Paull did not indicate that Plaintiff had a
cough or wheeze.
Regardless of whether Plaintiff was actually
stable at the time of the test, no post-bronchodilator test was
performed, and the record does not include a clear reason why such
test was not performed.
At the time of the test, Plaintiff was
fifty-five inches tall and his FEV1 value pre-bronchodilator came
back at .95, below the FEV1 value of 1.15 in Table I.
Pt. 404, Subpt. P, App. 1, 103.02A, Table I. A post-bronchodilator
test should have been performed in this situation.
Dr. Chavez and the state agency medical consultants did not find
that Plaintiff met this Listing criteria.
Other spirometry tests
performed by Dr. Chavez in 2012, 2013, and 2014 indicated that he
had normal FEV1 values above the Listing requirement.
In Cain v.
Barnhart, 193 F. App’x 357, 360 (5th Cir. 2006)(unpublished), the
court found that the plaintiff did not meet the Listing because,
even though on one occasion, his spirometry levels met the value in
the table, the test was performed at a time of exacerbation, and
[o]n most occasions, [the plaintiff’s] measurements were well above
disregard the findings in this test is supported by substantial
Asthma Attacks with Physician Intervention
physician intervention at least once every two months or six times
Dr. Chavez indicated that he met this requirement for
the Listing in her report from March 27, 2014.
The ALJ must evaluate every medical opinion in the record and
decide what weight to give each.
See 20 C.F.R. § 404.1527(c).
Generally, the ALJ will give more weight to medical sources who
treated the claimant because “these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal
picture of [the claimant’s] medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained
from the objective medical findings alone or from reports of
20 C.F.R. § 404.1527(c)(2); see also
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994)(stating that
the Fifth Circuit has “long held that ‘ordinarily the opinions,
diagnoses, and medical evidence of a treating physician who is
familiar with the claimant’s injuries, treatment[s], and responses
disability.’”)(quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.
1985)); SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996)(stating
that medical source opinions must be carefully considered, even on
issues reserved to the Commissioner).
The ALJ is required to give good reasons for the weight given
to a treating source’s opinion.
20 C.F.R. § 404.1527(c)(2); SSR
96-2p, 1996 WL 374188, at *5 (July 2, 1996).
When the determination or decision . . . is a denial[,]
. . . the notice of the determination or decision must
contain specific reasons for the weight given to the
treating source’s medical opinion, supported by the
evidence in the case record and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5.
The regulations require that,
when a treating source’s opinion on the nature and severity of a
claimant’s impairments “is well-supported by medically acceptable
inconsistent with the other substantial evidence in [the] case
record,” it is to be given controlling weight.
20 C.F.R. §
404.1527(c)(2); see also Newton v. Apfel, 209 F.3d 448, 455 (5th
Cir. 2000); SSR 96-2p, 1996 WL 374188, at *1.
When the ALJ does
not give a treating physician’s opinion controlling weight, he must
treatment relationship and the frequency of examination;” (2) the
“[n]ature and extent of the treatment relationship;” (3) the
consistency of the opinion with the remainder of the medical
record; (5) the treating physician’s area of specialization.
C.F.R. § 404.1527(c); Newton, 209 F.3d at 456.
Normally, a treating physician’s opinion is given considerable
weight when making a disability determination, but “when good cause
is shown, less weight, little weight, or even no weight may be
given to the physician’s testimony.”
Myers, 238 F.3d at 621 (5th
The Fifth Circuit has recognized the following
exceptions as “good cause” for disregarding a treating physician’s
opinion: “statements that are brief and conclusory, not supported
by medically acceptable clinical laboratory diagnostic techniques,
or otherwise supported by evidence.”
An ALJ may “reject a
treating physician’s opinion if he finds, with support in the
record, that the physician is not credible and is ‘leaning over
backwards to support the application for disability benefits.’”
Scott, 770 F.2d at 485.
The ALJ gave Dr. Chavez’s opinion some weight but found that
her “statements regarding [Plaintiff’s] having asthma attacks at
the frequency required under section 103.03 is also inconsistent
with the longitudinal record.”
Looking to the record, the court
Plaintiff argues that there was physician intervention
for asthma attacks six times between September 7, 2012, through
January 21, 2013.
Under the Listings, attacks “are defined as
requiring intensive treatment, such as intravenous bronchodilator
therapy in a hospital, emergency room or equivalent setting.”
C.F.R. Pt. 404, Subpt. P, App. 1, 3.00C. While Plaintiff’s medical
records show that he frequently visited the doctor during this
period, not all of these visits were to treat asthma attacks. And,
while it appears from the record that Plaintiff’s hospitalizations
from September 7, 2012, and September 11, 2012, may rise to the
level of “attacks” as provided in the Listings, the only other
medical evidence from this period included “exacerbations” on
December 13, 2012, and January 21, 2013 that required the use of
Medical appointments from September 27, 2012,
October 15, 2012, and January 11, 2013, showed no evidence of
Additionally, the state agency consultants found
that Plaintiff did not meet this criteria for the Listing.
Therefore, the court finds that the ALJ’s decision is supported by
Plaintiff alternatively contends that he meets the Listing for
asthma under 103.03C2.
In terms of corticosteroid use, the record
reflects that Plaintiff was prescribed a short-term corticosteroid
on the following occasions: January 24, 2011, for five days; March
10, 2011, for seven days; March 28, 2011, for seven days; April 28,
2011, for three to five days; December 9, 2011, as directed;
December 17, 2012, for twelve days; January 21, 2013, for seven
days; May 8, 2013, for five days; September 18, 2013, he was
treated with a steroid and prescribed one for five days; and
November 19, 2013, for ten days.
On September 11, 2012, he was
treated with a steroid while he was in the hospital for treatment.
While Plaintiff’s prescribed corticosteroid may have averaged
out to more than five days a month for three months at several
points in time, there is no evidence of persistent low-grade
wheezing between attacks or the absence of extended symptom-free
periods requiring daytime and nocturnal use of sympathomimetic
In the record, there are large gaps of time where
Plaintiff was experiencing no respiratory distress or wheezing. In
their reports from 2014, neither Dr. Chavez nor Dr. Paull found
that Plaintiff met the Listing for 103.03C2, and the state agency
medical consultants reports concurred.
Therefore, the court finds
that there is substantial medical evidence supporting the ALJ’s
Plaintiff additionally argues that the result of the test
performed by Dr. Paull supports that Plaintiff met the requirements
for Listing 103.02 in addition to Listing 103.03.
(chronic pulmonary insufficiency) requires “[c]hronic obstructive
pulmonary disease, due to any cause, with the FEV1 equal to or less
than the value specified in table I corresponding to the child’s
height without shoes.”
20 C.F.R. Pt. 404, Subpt. P, App. 1,
103.02A. Listing 103.03B (chronic restrictive ventilatory disease)
requires “the FVC equal to or less than the value specified in
table II corresponding to the child’s height without shoes.”
C.F.R. Pt. 404, Subpt. P, App. 1, 103.02B.
Table I for Listing
103.02A also applied above in the determination of 103.03A.
FVC value for 103.02B from Dr. Paull’s test was 1.25, which is
equal to the value in table II.
However, as explained, the
bronchodilator test was performed. Therefore, the court finds this
argument to be without merit.
Plaintiff also argues that the ALJ erred by not finding that
he functionally equaled the Listing and by not considering all the
functional impairments included in the evaluations by Plaintiff’s
teachers. Plaintiff contends that he has marked limitations in the
domains of attending and completing tasks and health and physical
Teacher evaluations may be used by the ALJ in deciding whether
a child has a disability. Sambula v. Barnhart, 285 F. Supp.2d 815,
824 (S.D. Tex. 2002)(citing 20 C.F.R. § 416.924(a)).
clinical and laboratory diagnostic techniques.”
Lee o/b/o R.L. v.
Commissioner, Soc. Sec. Admin., No. 11-CV-0910, 2013 WL 639060, at
*4 (W.D. La. Jan. 29, 2013)(unpublished).
In making her decision,
the ALJ “is entitled to determine the credibility of medical
Greenspan, 38 F.3d at 237.
teacher’s opinions, along with other school and medical records in
Plaintiff contends that the medical and school records show that he
had a marked limitation in the domain of attending and completing
The ALJ considered the problems noted by his teachers in
this area, including:
In the questionnaire completed in February 2013,
[Plaintiff’s] teacher, Tracy Wager, indicated that
[Plaintiff] required several breathing treatments daily,
and had difficulty staying on tasks following his visits
to the nurse’s office (Exhibit 8E, page 3). [Plaintiff]
was subsequently assessed as having serious difficulties
in his ability to complete class/homework assignments,
complete work accurately without careless mistakes and
working without distracting others.
rated as having obvious problems in his ability to wait
and take turns and changing from one activity to another
without being disruptive (Exhibit 8E, page 8). In March
2014, [Plaintiff’s] fourth grade teacher, also indicated
that [Plaintiff] was displaying a very serious problem in
respect to his ability to complete class/homework
assignments, and work without distracting himself or
others (Exhibit 18F, page 3).211
The ALJ discussed the visits to the school nurse, stating that they
were supported by the record, but found that Plaintiff had received
passing grades in the 2013/2014 school year and was allowed to
proceed to fifth grade.
While the teacher evaluations showed that
D.H. had some serious problems in this area, neither his treating
physician, Dr. Chavez, nor the state agency medical consultants
found that he had a marked limitation in this area.
The court agrees with Plaintiff that the ALJ’s decision that
he did not have a marked limitation in the area of health and
physical well-being was not supported by substantial evidence. The
ALJ reasoned that he did not have a marked limitation in this
evidence of non-compliance with treatment, and Plaintiff was still
doing well in school.
However, the record shows that a treating
physician, Dr. Chavez, and the state agency doctors both found
marked limitations in this category.
His teachers found that his
asthma affected his learning abilities and caused frequent absences
The record reflects that Plaintiff was mostly
compliant with his treatment and the fact that his parent continued
to smoke was out of his control.
However, while there was not
substantial evidence supporting the ALJ’s decision that Plaintiff
had less than a marked limitation in the domain of health and wellbeing, this does not mandate a finding that Plaintiff functionally
equals the Listing, because two marked limitations are required for
that finding. Therefore, this error does not warrant remand of the
case for reconsideration.
Based on the foregoing, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s.
SIGNED in Houston, Texas, this 8th day of May, 2017.
U.S. MAGISTRATE JUDGE
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