Opinion
Civil Action No. 3:99-CV-503.
November 16, 2000.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This civil action is before the Court on cross-motions for summary judgment. Cynthia Minor, on behalf of her minor child, Tameika Walker, seeks judicial review of an administrative decision of the Commissioner of Social Security (Commissioner) denying Supplemental Social Security Income (SSI) benefits based on Tameika Walker's alleged disability. Jurisdiction is predicated upon 42 U.S.C. § 405(g).
The Commissioner's final decision is based on a finding by the Administrative Law Judge (ALJ) that the Plaintiff is not disabled as defined by the Social Security Act and applicable regulations because she does not suffer from a listed impairment or from symptoms functionally equivalent thereto. (R. at 12). Because the ALJ did not consider any of the Plaintiffs medical records generated prior to the time she applied for the subject benefits, and because the ALJ did not find that the Plaintiff suffers from asthma accompanied by an "absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators," or asthma accompanied by "short courses of corticosteroids that average more than 5 days per month for at least 3 months during a 12-month period," (Pt. 404, Subpt. B, App. 1,103.03(c)(2)) despite substantial medical evidence supporting such a conclusion, this Court recommends that the Plaintiffs Motion for Summary Judgment should be GRANTED and that the Defendant's Motion for Summary Judgment should be DENIED.
Page citations refer to pages of the Administrative Record.
STANDARD OF REVIEW
In reviewing the decision of the Commissioner to deny benefits, the Court is limited to determining whether the Commissioner's decision is supported by substantial evidence on the record and whether the Commissioner applied the proper legal standard in evaluating that evidence. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence is more than a scintilla, less than a preponderance, and is the kind of relevant evidence which a reasonable mind could accept as adequate to support its conclusion. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971); and Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
In order to find whether substantial evidence exists, the Court is required to examine the evidence as a whole, but may not "undertake to re-weigh the conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the Secretary." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). At the same time, in considering the record as a whole, the ALJ must "take into account whatever in the record fairly detracts from its weight." Abbott v. Sullivan, 905 F.2d 918, 923 (4th Cir. 1990). The Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence on the record, or where an error of law has been made, the district court must reverse. Coffman v. Bowen, 829 F.2d at 517.
Questions Presented
The questions presented in this appeal are: (1) whether the Commissioner's final decision was reached by application of the correct legal standard and is supported by substantial evidence on the record; and (2) whether the Commissioner's final decision must be reversed because the ALJ failed to consider substantial medical evidence that supports the Plaintiffs claim.
Procedural History
The Plaintiffs mother initially applied for SSI benefits on her behalf on October 16, 1995, alleging disability since January 29, 1993, due to asthma. (R. at 39, 52). The Plaintiffs claim for benefits was initially denied on November 3, 1995. (R. at 48). Following reconsideration, the claim was again denied on February 28, 1999. (R. at 7). In May of 1999, the Appeals Council denied the Plaintiffs request for review (R. at 3-4), rendering the ALJ's final decision the final decision of the Commissioner.
After exhausting her administrative remedies, the Plaintiff filed this action seeking judicial review of the Commissioner's final decision. Her case is now ready for disposition.
Evidence on The Record
The Plaintiff claims she has been disabled since January 29, 1993. The administrative record contains the Plaintiffs medical records from October 4, 1993, when she was diagnosed with asthma, through October 20, 1997. During this period, the Plaintiff was treated at various Virginia medical facilities including the Community Memorial Health Center, South Hill Family Medicine and the Medical College of Virginia. The Plaintiffs medical records confirm, and the ALJ found, that she has chronic asthma. Although the ALJ found that Plaintiff suffers from chronic asthma, she also found that the condition does not constitute a disability that would entitle Plaintiff to benefits. (R. at 11, 18).
Asthma is defined as "an inflammatory disease of the lungs characterized by widespread and largely reversible . . . airway obstruction." STEDMAN'S MEDICAL DICTIONARY 158 (27th ed. 2000). The Court notes that Plaintiff was not frequently hospitalized for asthma attacks. However, frequency of hospitalization is not a factor in determining whether asthma is disabling under the regulations.
Reports in the Record from the Plaintiffs Health Care Providers
The discharge summary from Community Memorial Health Center in South Hill, Virginia, indicates that the Plaintiff, suffering from asthma, bronchitis and obesity and "wheezing up a storm" was hospitalized on October 5, 1993. (R. at 98). Medical records prior to this event — for February 17, 1993 and October 4, 1993 — indicate "diffuse wheezing." (R. at 100-101). On November 9, 1993, less than a month after her hospitalization, the Plaintiffs physician noted "a few scattered wheezes." (R. at 98). A day later, on November 10, 1993, she still had "a few expiratory wheezes." (R. at 97). On February 3, 1994, her physician noted an "acute flare-up" of asthma. (R. at 96). On May 10, 1994, she had "a few expiratory wheezes." (R. at 95). On September 27, 1994, "a few expiratory wheezes" were again noted. (R. at 93). On December 12, 1994, her doctor found "chronic asthma with acute flare-up." (R. at 92). On February 16, 1995, another attack of "asthma with flare-up" was noted. (R. at 89). On November 7, 1995, the Plaintiff was diagnosed with "soft wheezes bilaterally." (R. at 118). On November 21, 1995, her doctor found "anterior wheezes." (R. at 119).
Wheezing is defined as a "whistling, squeaking, musical or puffing sound made on exhalation by air passing through the fauces, glottis, or narrowed tracheobronchial airways." STEDMAN'S MEDICAL DICTIONARY 1986 (27th ed. 2000).
On May 22, 1996, the Plaintiffs physician noted "soft wheezes throughout both lung fields." (R. at 116). On August 21, 1996, she had "a few wheezes, anterior and posterior." Id. On October 24, 1996, Plaintiff was diagnosed with an "asthma attack" characterized by "wheezes throughout" her chest. (R. at 115). On November 5, 1996 she still had "soft wheezes." (R. at 113). A medical examination the following day indicated "scant wheezes," but an examination the day after that — on November 7, 1996 — showed "expiratory wheezing . . . asthma with mild flare-up." (R. at 113-114). On April 29, 1997, the Plaintiffs physician noted another "asthma flare-up" with "occasional expiratory wheeze." (R. at 112).
The Plaintiffs medical records further show a history of prescribed corticosteroid use. Specifically, the records indicate prescribed Prednisone and Sterapred treatment on October 9, 1993, November 9, 1993, December 2, 1993, February 3, 1994, September 20 1994, September 27, 1994, December 12, 1994, December 14, 1994, December 16, 1994, January 17, 1995, February 16, 1995, April 20, 1995, June 24, 1995, September 25, 1995, May 6, 1996, August 21, 1996, October 7, 1996, November 11, 1996, November 7, 1996, April 29, 1997 and October 20, 1997. (R. at 82-84, 85, 88, 89, 91, 92 112, 115-117, 121, 122).
Prednisone and Sterapred are commonly-used corticosteroids, the most powerful class of drugs available for the treatment of asthma. For children experiencing an acute asthma attack who do not respond completely to bronchodilators, the early use of such inhaled corticosteroids has been found to reduce the need for subsequent hospitalization. Asthma in Children (November 9, 2000), available at WebMdHealth, http://mvwebmd.com.content.
The medical evidence and the decision of the ALJ also include numerous references to Plaintiffs. While obesity diminishes the Plaintiffs overall health, it was not a basis for her application or the denial of the benefits. (R. at 6, 12, 39-41, 42-43, 46-47, 50, 52-53, 56, 58-63, 73,75).
Testimony of Tameika Walker
At the time of the hearing before the ALJ, the Plaintiff was 13 years old. She testified that her asthma prevented her from running and that her condition was aggravated by exposure to cleaning supplies and pine trees. (R. at 30). When exposed to these substances, she testified that her chest tightens up and she experiences shortness of breath. Id. At such times, she stated that she uses an inhaler and that, in general, she uses an inhaler at least once a day and a nebulizer two or three times a week. (R. at 34). In addition, she testified that she takes Prednisone two or three times a month, which seems to ease her symptoms and help her breathe better. (R. at 32). The Plaintiff also testified that changes in the weather, as well as activities such as running, walking and playing baseball and basketball, bring on asthma attacks. (R. at 33). Finally, she said it took her two or three days to recover from her most recent asthma attack. (R. at 34).
An inhaler is defined as "an apparatus for administering pharmacologically active agents by inhalation." STEDMAN'S MEDICAL DICTIONARY 900 (27th ed. 2000).
A nebulizer is defined as "a device used to reduce liquid medication to extremely fine cloudlike particles; useful in delivering medication to deeper parts of the respiratory tract. STEDMAN'S MEDICAL DICTIONARY 1184 (27th ed. 2000).
Testimony of Cynthia Walker Minor
Cynthia Minor, the Plaintiffs mother, said her daughter began having asthma problems at age five or six. (R. at 34). She also testified that at the time of the hearing, Tameika suffered from asthma attacks at least three times a month and when the nebulizer doesn't work, Tameika takes Prednisone. (R. at 35). Mrs. Walker also asserted that the Prednisone caused Tameika to gain weight and that before an asthma attack, Tameika gets dark circles around her eyes and suffers from a lack of energy. (R. at 35, 37).
Applicable Law
Fact finders must employ a sequential evaluation process in order to determine whether or not a person under age 18 is eligible for SSI benefits. 20 C.F.R. § 416.924(a)-(f); Sullivan v. Zebley, 493 U.S. 521, 540-541 (1990).
The ALJ noted that the "[a]djudication of this case has been delayed considerably because of amendments to the Social Security Act contained in Public Law 104-193" that caused a halt to all hearings involving claims of disability by a child. (R. at 10).
The first step requires a determination of whether the child is engaged in substantial gainful activity. Under 20 C.F.R. 416.972, substantial gainful activity is "work activity that is both substantial and gainful." Activities such as "taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities" and "social programs" are generally not considered gainful activity. In this case, the ALJ found, and the evidence supports the finding, that Tameika Walker was not engaged in substantial gainful activity as defined by the statute. (R. at 12, 18).
Next, the Plaintiff must show that she has a severe medically determinable impairment or combination of impairments as defined in 20 C.F.R. § 416.924, that is severe. In order to qualify as severe under the regulation, an impairment or combination of impairments must be expected to result in death or last for a continuous period of at least twelve months and cause "marked and severe functional limitations." Id. Other factors to be considered are chronic illness "characterized by episodes of exacerbation (worsening) or remission (improvement) and the frequency and severity of such episodes," the effect of required medications, the effect of structured or highly supportive settings and the nature and the extent of any adaptations that have been made to accommodate the child. 20 C.F.R. § 416.924c(a)-(h). In this case, the ALJ found, and the evidence substantially supports the finding, that the Plaintiffs impairment is severe. (R. at 12, 18).
Third, concerning a child claimant, the regulations provide an appendix of listed impairments. 20 C.F.R. § 416.920(d); App. 1, Subpt. P. If a Plaintiffs impairment(s) matches one of the listed impairments, or is medically equal to a listed impairment, disability is proven. However, if a Plaintiffs disease doesn't meet a listing but instead has impairment-caused functional limitations that match the functional limitations of any listing, they are regarded as functionally equivalent to that listing and disability is likewise proven. In this case, the ALJ found that the Plaintiffs impairment does not match a listed impairment. But no evidence supports this finding. Specifically, Appendix 1, Subpart P, Section 103.03.C.2, lists asthma accompanied by "persistent low-grade wheezing between acute attacks" or an "absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators" accompanied by "short courses of corticosteroids that average more than 5 days per month for at least three months during a 12 month period" as constituting a listed impairment. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 103.03.C.2.
The actual text of the applicable listing requires a claimant prove:
C. Persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime or nocturnal use of sympathomimetic bronchodilators with one of the following:
1. Persistent prolonged expiration with radiographic or other appropriate imaging techniques evidence of pulmonary hyperflation or peribronchial disease; or
2. Short courses of corticosteroids that average more than 5 days per month for at least three months during a 12-month period.20 C.F.R. Part 404, Subpart P, App. 1, 103.03.C.
The Plaintiff is diagnosed with asthma consistent with the regulations. (R. at 86-101, 106-108). Plaintiffs medical records specifically indicate she exhibited "persistent low-grade wheezing between acute attacks" and an "absence of extended symptom-free periods requiring daytime and nocturnal use of sympathomimetic bronchodilators." Id. Several records show there were, in fact, doctor's visits when Plaintiff had no wheezing. It is evident that Plaintiff did not seek medical treatment for each and every attack. It is also apparent that Plaintiff enjoyed weeks of stability and improvement. However, the medical records and the unrebutted, generally credible testimony of Plaintiff and her mother document persistent low-grade wheezing and absence of extended symptom-free periods consistent with disability defined by the regulations.
Medical records for February 17, 1993, and October 4, 1993, indicate "diffuse wheezing." The Plaintiff was hospitalized on October 5, 1993 following "significant expiratory wheezing." On November 9, 1993, less than a month after her hospitalization, the Plaintiffs physician noted "a few scattered wheezes." A day later, on November 10, 1993, she had "a few expiratory wheezes." On May 10, 1994, she had "a few expiratory wheezes." On September 27, 1994, "a few expiratory wheezes" were again noted. On December 14, 1994, she had "some wheezing." On November 7, 1995, the Plaintiff was diagnosed with "soft wheezes bilaterally." On November 21, 1995, her doctor found "anterior wheezes." On May 22, 1996, the Plaintiffs physician noted "soft wheezes throughout both lung fields." On August 21, 1996, she had "a few wheezes, anterior and posterior." On October 24, 1996, the Plaintiff was diagnosed with an "asthma attack" characterized by "wheezes throughout" her chest. On November 5, 1996, she still had "softwheezes." A medical examination the following day, on November 6, 1996, indicated "scant wheezes," but an examination the day after that — on November 7, 1996 — showed "expiratory wheezing . . . asthma with mild flare-up." On April 29, 1997, the Plaintiffs physician noted another "asthma flare-up" with "occasional expiratory wheeze." (R. at 82-84, 87, 90, 92-99, 101, 113-119, 121, 124) (emphasis added).
In addition, the Plaintiffs medical records specifically indicate that her condition has required "short courses of corticosteroids that average more than 5 days per month for at least three months during a 12-month period," as required by 20 C.F.R. Pt. 404, Subpt. P, App. 1, 103.03. (R. at 82-84, 85, 88, 89, 91, 92 112, 115-117, 121, 122). Specifically, the Plaintiffs medical records indicate that she underwent three five-day courses of Prednisone during October, November and December of 1993; that she underwent four courses of Prednisone averaging five days each during February, September and December of 1994; that she underwent four courses of Prednisone averaging five days each in February, April and June of 1995; and that she underwent four courses of corticosteriods, including Prednisone and Sterapred, during May, August and October of 1996. Id.
Not only did the ALJ neglect to analyze the regulations, the Commissioner misquoted the requirements of the regulations in its brief, stating that "`short courses of corticosteroids that average more than 5 days per month during a 12 month period'" are required to meet the listing. (Def's Cross Mot. for Summ. J., at 14). It is incorrect for the Commissioner to assert and to analyze a claim under a standard that requires the Plaintiff to have an average of more than 5 days of treatment per month for 12 months; rather, a claimant must show an average of more than 5 days of treatment for three months in a 12-month period. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 103.03.C.2.
Despite the substantial evidence that the Plaintiffs condition meets the definitions of the regulations, the ALJ found that the Plaintiff does not suffer from a listed impairment. (R. at 12). As a result of this finding, the ALJ proceeded to a functional equivalence analysis. The ALJ thereupon concluded that: "The medical evidence shows that the claimant has a long history of asthma and allergies. The period under consideration here, though, is from October, 1995, when the claimant's disability application was filed, through the present." (R. at 13). Both the period of consideration and the functional equivalence analysis are mistakes of law. In deciding whether or not a claimant is eligible for SSI benefits, the Commissioner must consider all relevant medical evidence in the record. ( See 20 C.F.R. § 416.924c(a) and 20 C.F.R. § 416.926a(c)(2)). The ALJ failed to consider all the evidence on the record and must be reversed.Young v. Bowen, 858 F.2d 951, 954 (4th Cir. 1988) (refusing to remand to the Social Security Administration where there was a long, "convoluted" case history and there was a fully developed medical record, the Court held that further proceedings were unnecessary and a final determination was appropriate.)
In its brief, the Commissioner reviews all the evidence on the record beginning in February of 1993. (Def.'s Cross Mot. for Summ. J., at 3). Considering the ALJ's error of the period of consideration, the Commissioner cannot now pick and choose among that which is fairly on the record to reconstruct evidence and reasoning upon which the ALJ clearly did not rely.
The Commissioner also relies on the incorrect period of consideration in its brief. (Def.'s Cross Mot. for Summ. J., at 14, n. 3).
Indeed, the initial Explanation of Determination sent to the Plaintiff by the Social Security Administration in this case specifically states that medical records kept between February 17, 1993, and October 5, 1995, were among those reviewed in order to decide the claim. (R. at 53). The Plaintiff claims her disability began on January 29, 1993. (R. at 58). Title XVI only allows for payments as of the date a plaintiff applies for benefits. However, the statute does not preclude consideration of medical records generated prior to the date of application. ( See SSR 83-20, Titles II and XVI: Onset of Disability). To the contrary, consideration of all relevant medical evidence is required.
Substantial evidence must support an ALJ's decisions. Pleasant Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994). In failing to consider the Claimant's pre-1995 medical records, the ALJ erred in an application of the law. This Court further finds that the ALJ's determination that the Claimant does not suffer from a listed impairment is unsupported by substantial evidence in the record. It is apparent on the record that Plaintiff met the requirements of a listed impairment and thus, as a matter of law, is disabled and entitled to benefits.
In defense, the Commissioner argues that although Plaintiff was noted to have wheezing, she also had "good air movement." (Def.'s Cross Mot. for Summ. J., at 14). On other occasions, the Commissioner argues, Plaintiff had "completely clear lungs," "no wheezes, "accessory muscle use, retractions or other evidence of bronchospasm or distress," and that "her asthma was stable." Id. (citing R. at 117). The Commissioner also painstakingly identified approximately twenty-two times that Plaintiff was evaluated without any mention of wheezing. (Def.'s Cross Mot. for Summ. J., at 15). The Commissioner further identified approximately sixty-six weeks in a 156-week period where Plaintiff was "free of symptoms related to her asthma." Id. However, the Commissioner fails to recognize what is required under the law — that a Plaintiff with the following asthma symptomatology is disabled:
persistent low-grade wheezing between acute attacks or absence of extended symptom-free periods requiring daytime or nocturnal use of sympathomimetic bronchodilators with . . . short courses of corticosteroids that average more than 5 days per month for at least three months during a 12-month period.20 C.F.R. Part 404, Subpart P, App. 1, 103.03.C., 103.03.C.2.
The proper analysis is whether Plaintiff qualifies for benefits under this regulation. It is well-documented that Plaintiff had persistent low-grade wheezing established by her doctor's visits as well as her own testimony and that of her mother. It is well-documented that the Plaintiff had acute attacks of asthma over time. It is well-documented that during the time in question, she did not have extended symptom-free periods and required daytime and nighttime use of sympathomimetic bronchodilators. It is also well-documented that she was treated several times with short courses of corticosteroids that averaged five days per month for at least three months during a twelve-month period. ( See 20 C.F.R. Part 404, Subpart P, App. 1, 103.03.C.2.)
The ALJ found that the testimony of the Plaintiff and her mother was generally credible except with respect to the Plaintiffs exertional limitations. (R. at 14). However, analysis of exertional limitation is obviated when there is substantial evidence on the record to support a finding that a Plaintiff has a listed impairment.
This is not a situation where the Court has re-weighed the evidence. See Coffman v. Bowen, 829 F.2d at 517. The ALJ not only failed to consider the evidence on the record that established Plaintiffs disability under the regulations, she failed to evaluate the evidence under the relevant regulations and instead analyzed the evidence under a functional equivalence standard which was thorough but unnecessary. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (holding "[i]f the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled.").
CONCLUSION
Based on the foregoing, it is recommended that the Plaintiffs Motion for Summary Judgment be GRANTED and that the Defendant's Motion for Summary Judgment be DENIED. Because there was a long delay at the administrative level occasioned by a change in the law, not by any action of the Plaintiff, and because there is a frilly developed medical record before the Court, it is proper to reverse and render a decision instead of causing greater delay by way of a remand. See Young v. Bowen, 858 F.2d at 954. Further, because the alleged onset date differs from the medical evidence on the record, the Court finds the stated onset date is ambiguous. Therefore, the Court recommends a finding that the date of October 4, 1993, has been established as the appropriate onset date where it is unequivocal and unrebutted that Plaintiff suffered from her impairment as of that point in time. (R. at 99-100); Id. at 955; Dixon v. Chater, 1997 WL 22237, at *4 (4th Cir. Jan. 22, 1997) (unpublished).
Therefore, it is recommended that the decision of the Commissioner be REVERSED and RENDERED in favor of the Plaintiff with an onset date of October 4, 1993, and benefits awarded as of her application date.