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Green v. Colvin

United States District Court, D. Connecticut

January 8, 2018

SHALECE RENAE GREEN, on behalf of D.D. Plaintiff,
v.
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 COMMISSIONER

          Michael P. Shea, U.S.D.J.

         This is 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.

         I. Background

         Ms. 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.).

         The ALJ 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).

         The 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.

         II. Standard

         The SSA 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. § 416.924(d).

         In 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).

         “A 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).

         III. Discussion

         a. Listed Impairments

         Ms. 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).[1] 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.

         1. 103.03C

         Ms. 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 hearing[2]:

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 period;

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 basis.(Id.).

         The 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 ...


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