United States District Court, D. Connecticut
SHALECE RENAE GREEN, on behalf of D.D. Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
Michael P. Shea, U.S.D.J.
an administrative appeal following a decision by the Acting
Commissioner of the Social Security Administration
(“Commissioner”) concluding that D.D., the minor
child of Shalece Renae Green, was no longer disabled under
the Social Security Act. Ms. Green contends that the
Administrative Law Judge (“ALJ”) erred in finding
that D.D.'s impairments did not meet or medically equal a
listed impairment-namely Listings 103.03C, 103.03D, and
105.08B.2. She also argues that the ALJ erred in concluding
that D.D.'s impairments did not functionally equal a
listed impairment. For the reasons set forth below, I
conclude that the ALJ's decision was supported by
substantial evidence. I therefore AFFIRM.
Green filed an application for disability benefits on behalf
of D.D. on May 7, 2010. (Joint Statement of Facts, ECF No.
17-2 at 1). The Social Security Administration
(“SSA”) granted the application a month later.
(Id.). The SSA subsequently conducted a
redetermination of D.D.'s eligibility for disability
benefits in January of 2012 and concluded that D.D. was no
longer eligible for benefits as of April 12, 2012.
(Id.). Ms. Green appealed the decision by requesting
Reconsideration. (Id.). A hearing was scheduled
before hearing officer Kira Cunningham on May 15, 2013, but
Ms. Green and D.D. did not appear at the hearing.
(Id. at 1-2). Ms. Green later contacted the hearing
officer and submitted supplemental information in support of
her claim. (Id. at 2). The hearing officer concluded
that D.D. was no longer disabled and affirmed the cessation
of D.D.'s disability benefits. (Id.). Ms. Green
then requested a hearing before an Administrative Law Judge
(“ALJ”). (Id.). After conducting a
hearing on April 13, 2015, at which Ms. Green and her counsel
were present, ALJ Alexander Borre issued an unfavorable
decision on June 23, 2015. (Id.).
found that although D.D. continued to suffer from various
afflictions, these impairments no longer qualified him to
receive disability benefits. (ALJ Decision, ECF No. 11-3 at
32). Although the ALJ found that D.D. suffered from several
severe impairments-including developmental delays, visual
deficits, asthma, and low weight due to a premature birth-he
ultimately concluded that none of these conditions
constituted “an impairment or combination of
impairments that functionally equals the listings.”
(Id. at 19). In particular, the ALJ rejected Ms.
Green's claim that D.D.'s asthma matched or
functionally equaled a listed impairment given its
intermittent nature. (Id. at 22). The ALJ also
concluded that D.D. did not have a marked limitation in any
of the domains of functioning. (Id. at 24-31).
Appeals Council denied Ms. Green's request for review on
November 23, 2016, thereby making the ALJ's decision the
final decision of the Commissioner. (Joint Statement of
Facts, ECF No. 17-2 at 2). Ms. Green then filed this appeal.
Specific facts and portions of the ALJ's decision will be
discussed below as necessary.
provides for benefits to children (individuals under the age
of 18) with a disability, i.e. a “medically
determinable physical or mental impairment, which results in
marked and severe functional limitations, and which can be
expected to result in death or has lasted or can be expected
to last for a continuous period of not less than 12
months.” 42 U.S.C. § 1382c(a)(3)(C)(i). To
determine whether a child is disabled under the SSA, an ALJ
must employ a three-step process promulgated by the
Commissioner. The ALJ must first inquire into whether the
child is working and, if so, whether such work constitutes a
“substantial gainful activity.” 20 C.F.R. §
416.924(b). If the child is not engaged in a substantial
gainful activity, the ALJ must then determine whether the
child has a “medically determinable impairment that
is severe” within the meaning of the regulations. 20
C.F.R. § 416.924(c). If the child has a severe
impairment or combination of impairments, the ALJ must then
analyze whether the impairments “meet, medically equal,
or functionally equal the listings.” 20 C.F.R. §
analyzing whether a child's impairment functionally
equals a listing, an ALJ must inquire into whether the
impairment constitutes a “‘marked limitation'
in two domains of functioning or an ‘extreme'
limitation in one domain. . . .” 20 C.F.R. §
416.926a(a). The regulations recognize a total of six domains
of functioning: “(i) [a]cquiring and using information;
(ii) [a]ttending and completing tasks; (iii) [i]nteracting
and relating with others; (iv) [m]oving about and
manipulating objects; (v) [c]aring for yourself; and, (vi)
[h]ealth and physical well-being.” 20 C.F.R. §
416.926a(b)(1). An impairment constitutes a
“marked” limitation in a domain when it
“interferes seriously with [the child's] ability to
independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(2)(i). An
impairment is an “extreme” limitation in a domain
if it “interferes very seriously with [the child's]
ability to independently initiate, sustain, or complete
activities.” 20 C.F.R. § 416.926a(e)(3)(i). To
determine whether a child's impairment meets one of these
benchmarks, an ALJ must compare the child's performance
in one of the six domains listed above to “other
children [of the child's age] who do not have
impairments.” 20 C.F.R. § 416.926a(b).
district court may set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by ‘substantial
evidence' or if the decision is based on legal
error.” Burgess v. Astrue, 537 F.3d 117, 127
(2d Cir. 2008), quoting Shaw v. Chater, 221 F.3d
126, 131 (2d Cir. 2000). “Substantial evidence means
more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.” Id. at 127, quoting Halloran
v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004). Hence,
“as a general matter, the reviewing court is limited to
a fairly deferential standard.” Gonzalez ex rel.
Guzman v. Sec'y of U.S. Dep't of Health & Human
Servs., 360 Fed.Appx. 240, 242 (2d Cir. 2010).
Green contends that the ALJ erred in determining that
D.D.'s condition did not meet or medically equal a listed
impairment-to wit, Listings 103.03C, 103.03D, and 105.08.
(ECF No. 17-1 at 8, 11, 16). In order for “a claimant to
show that his impairment matches a listing, it must meet all
of the specified medical criteria.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990). Impairments that
“manifest only some of those criteria, no matter how
severe, do not qualify.” Id. Hence, a child
with an impairment that greatly exceeds one of the necessary
criteria for a listing but falls only slightly below the
other would not match the listing. Id. n. 8. In
order “[f]or a claimant to qualify for benefits by
showing that his unlisted impairment, or combination of
impairments, is ‘equivalent' to a listed
impairment, he must present medical findings equal in
severity to all the criteria for the one most
similar listed impairment.” Id. at 531
(quoting 20 C.F.R. § 416.926(a), footnote omitted). With
these principles in mind, I now address each listing
identified by Ms. Green in turn.
Green argues that the ALJ erred in determining that D.D's
impairments did not meet or medically equal the requirements
of Listing 103.03C (see ECF No. 17-1 at 8), which
provided in relevant part as follows at the time of the
103.03 Asthma. With:
C. Persistent low-grade wheezing between acute attacks or
absence of extended symptom-free periods requiring daytime
and nocturnal use of sympathomimetic 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 corticosteroids that average more than 5
days per month for at least 3 months during a 12-month
20 C.F.R. § Pt. 404, Subpt. P, App. 1, 103.03C
(Effective January 2, 2015 to May 17, 2015). Ms. Green
contends that D.D. was on a regular regimen of asthma
medications, including sympathomimetic bronchodilators.
(See ECF No. 17-1 at 9). She also argues that D.D.
did not have extended symptom-free periods, and that his
daily treatment with corticosteroid asthma medication-i.e.,
“Pulmicort respules” (id. at 10)-met the
listing's requirement of short courses of corticosteroids
that average more than five days per month for at least three
months during a twelve-month period. Finally, she avers that
D.D. took his medication at home on a daily
ALJ's conclusion that D.D. did not match Listing 103.03C
rested on his determination that D.D. did not have persistent
low-grade wheezing or absence of extended symptom-free
periods requiring daytime and nocturnal use of
sympathomimetic bronchodilators. (ALJ Decision, ECF No. 11-3
at 22). While the ALJ noted that D.D. experienced frequent
upper respiratory infections, he found that the treatment
records did not demonstrate continuous symptoms.
(Id.). Rather, the ALJ concluded that the records
showed that D.D. suffered from intermittent attacks, that he
had gone several months without treatment at times, and that
he showed no signs of wheezing. (Id.). The ALJ also
observed that D.D. had ...