Colbert ex rel. J.V.R. v. Comm'r of Soc. Sec.
| Decision Date | 08 July 2014 |
| Docket Number | Case No. 13-13801 |
| Parties | NINA COLBERT O/B/O J.V.R., a minor, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
United States District Judge
Michael Hluchaniuk
On September 6, 2013, plaintiff, mother of J.V.R., a minor child, filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Denise Page Hood referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claim for supplemental security income childhood disability benefits on J.V.R.'s behalf. (Dkt. 3). This matter is currently before the Court on cross-motions for summary judgment. (Dkt. 10, 12).
Plaintiff filed the instant claim for supplemental security income childhood disability benefits on September 21, 2010, on behalf of her minor child, J.V.R., alleging disability beginning on November 1, 2009. (Dkt. 6-5, Pg ID 170-75). The claim was initially disapproved by the Commissioner on December 6, 2010 (Dkt. 6-3, Pg ID 103), and again on reconsideration on February 8, 2011. (Dkt. 6-3, Pg ID 106). Plaintiff requested a hearing and on March 23, 2012, plaintiff and J.V.R. appeared, without a representative, before Administrative Law Judge (ALJ) Ramona L. Fernandez, who considered the case de novo. (Dkt. 6-2, Pg ID 73-101). In a decision dated April 10, 2012, the ALJ found that J.V.R. was not disabled. (Dkt. 6-2, Pg ID 53-68). Plaintiff requested a review of this decision, and the ALJ's decision became the final decision of the Commissioner when, after the review of additional exhibits,1 the Appeals Council, on July 25, 2013, denied plaintiff's request for review. (Dkt. 6-2, Pg ID 30-33); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, it is RECOMMENDED that plaintiff's motion for summary judgment be DENIED, defendant's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.
The claimant, J.V.R., was four years old when she was diagnosed with asthma and seven years of age at the time of the administrative hearing. (Dkt. 6-2, Pg ID 59, 80). At Step I of the three-step sequential evaluation process, the ALJ found that J.V.R. did not engage in substantial gainful activity since September 21, 2010, the application date. (Dkt. 6-2, Pg ID 59). At Step II, the ALJ found that J.V.R. had asthma, which she found to be a severe impairment that caused more than minimal functional limitations. (Dkt. 6-2, Pg ID 59). At Step III, the ALJ found that J.V.R. did not have an impairment or combination of impairments that met or medically equaled the Listings or that functionally equaled the Listings. (Dkt. 6-2, Pg ID 59-68). In denying plaintiff's claim, the ALJ evaluated J.V.R.'s degree of limitation in each of the six functional equivalence domains and concluded that she did not have "marked" or "extreme" limitations in any of the six broad functional domains and thus did not functionally equal a listed impairment. (Dkt. 6-2, Pg ID 62-68). The ALJ thus determined that J.V.R. has not beendisabled since September 21, 2010 through the date of the decision. (Dkt. 6-2, Pg ID 68).
Plaintiff contends that the ALJ rendered an incomplete analysis as to the domain of health and physical well-being. According to plaintiff, in addressing a claim for childhood disability benefits, the domain of "health and physical well-being" is to be evaluated in accordance with SSR 09-8p, which recognizes not only the physical affects of a given condition, but also the consequences of its treatment. The ruling further notes that "periods of therapy can be frequent or time-consuming...," and the fact that a claimant requires frequent treatment or therapy is relevant to the analysis. Id. Plaintiff continues that, for conditions like asthma that can be considered "episodic," the ruling states, "[w]hen symptoms and signs fluctuate, we consider the frequency and duration of exacerbations, as well as the extent to which they affect a child's ability to function physically." Id. Plaintiff argues that the ALJ's analysis of this domain does not adequately take these matters into account or fulfill the requirements of SSR 09-8p. According to plaintiff, the fact that J.V.R.'s condition could eventually be controlled by her medication such that she did not need frequent doctor's visits or trips to the emergency room should not be dispositive. Plaintiff testified that she always tried to head off a problem at home, rather than seeking formal treatment (Tr. 59-60),and the ME testified that plaintiff had become adept at treating her daughter's condition. (Tr. 70-71). Plaintiff argues, however, that the treatment involved, as well as its frequency and the amount of time consumed, are still relevant, as SSR 09-8p includes "nebulizer treatments" in the list of those therapies which can be "frequent or time-consuming." According plaintiff, she testified that breathing treatments could take as long as six hours to complete. (Tr 60). Consequently, plaintiff concludes, it was not merely the visits to doctors' offices or the hospital that should have been considered, but also the home treatments. Plaintiff asserts that the fact that she could most often bring an acute problem under control using such time-consuming procedures does not render them or their consequences irrelevant. Plaintiff argues, however, that the ALJ completely failed to consider the impact of these therapies.
Plaintiff further argues that SSR 09-8p recognizes that episodic conditions like asthma manifest in "periods of worsening (exacerbation) and improvement (remission), and when symptoms and signs fluctuate, we consider the frequency and duration of such exacerbations, as well as the extent to which they affect a child's ability to function physically." Plaintiff contends that the ALJ neglected to take this factor into account, as well by his failure to consider the consequences of J.V.R.'s home therapies, as opposed to those treatments provided in a more formal setting such as a doctor's office or hospital. Plaintiff further contends that theconsequences of treatment must be considered taking into account J.V.R.'s age. SSR 09-8p states that "we must consider the expected level of functioning for given child's age in determining the severity of a limitation." Plaintiff argues that, in this regard, for example, the loss of four to six hours out of a given day would constitute a far greater portion of the day for a seven-year-old than it would for a 16-year-old who would likely be awake several more hours in the course of a day. Plaintiff argues that the ALJ's analysis failed to consider this issue as well. Plaintiff concludes that the ALJ's failure to fully consider the nature of the domain of health and physical well-being has led to an inadequate decision that must be remanded for further consideration.
The Commissioner argues that the ALJ reasonably found that J.V.R.'s asthma did not meet, medically equal, or functionally equal a listed impairment. According to the Commissioner, plaintiff does not challenge the ALJ's finding that J.V.R.'s asthma was a severe impairment that did not meet or medically equal a listing, but only argues that the ALJ did not properly assess J.V.R.'s limitations in the domain of health and physical well-being. The ALJ concluded that J.V.R. did not have "marked" or "extreme" limitations in any of the six broad functional domains and thus did not functionally equal a listed impairment. (Tr. 30-39). According to the Commissioner, substantial evidence supports the ALJ's findingthat J.V.R. had less than marked limitations in the domain of health and physical well-being. (Tr. 39).
The Commissioner asserts that the ALJ noted that plaintiff restricted J.V.R.'s physical activity as necessary to prevent asthma attacks. (Tr. 39, citing Tr. 66). For example, plaintiff stated that she would limit J.V.R. to riding her bike for only a couple of hours per day and that she did not enroll J.V.R. in any sports or cheerleading programs. (Tr. 66). The Commissioner argues that despite these restrictions, J.V.R. testified that she could still play outside with her friends at recess, go to parks to play with her family, ride her bike at her grandmother's home, and play basketball at home. (Tr. 53-54). The Commissioner contends that J.V.R.'s participation in outdoor activities does not reflect that she had marked or extreme limitations.
The Commissioner further argues that the ALJ also noted that J.V.R.'s asthma was well-controlled with medication. (Tr. 39). Treatment notes from January 2011, when J.V.R. was still living in Florida, show that her asthma improved with medication and that her symptoms had reduced with Advair, despite some persistent symptoms that were exercise-induced. (Tr. 311). Notably, the Commissioner continues, plaintiff testified that J.V.R.'s asthma was most severe while they were living in Florida, but that her symptoms improved when they moved to Michigan in June 2011. (Tr. 57). Plaintiff said that J.V.R. went to thedoctor for check-ups once every other month and used Singulair daily, an Advair inhaler twice daily, and an Albuterol inhaler as needed. (Tr. 67). The Commissioner notes that although J.V.R. went to the emergency room in February 2012, plaintiff confirmed that J.V.R. had never been hospitalized for her asthma. (Tr. 65, 331-34). According to the Commissioner, J.V.R.'s ability to control her symptoms with medication does not...
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