Russell v. Astrue

• Decision Date: 23 September 2010
• Docket Number: Civil Action File No. 1:09–CV–01123–AJB.
• Parties: Lashauna RUSSELL, o/b/o C.G., Plaintiff,v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of Georgia

742 F.Supp.2d 1355

Lashauna RUSSELL, o/b/o C.G., Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security Administration, Defendant.

Civil Action File No. 1:09–CV–01123–AJB.

United States District Court, N.D. Georgia, Atlanta Division.

Sept. 23, 2010.

Kent Eric Silver, Silver and Archibald, Athens, GA, for Plaintiff.Darcy F. Coty, U.S. Attorney's Office, Atlanta, GA, for Defendant.

ORDER ¹ AND MEMORANDUM OPINION

ALAN J. BAVERMAN, United States Magistrate Judge.

Plaintiff, Lashauna Russell on behalf of C.G., (“Plaintiff”), brought this action pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying the application for Supplemental Security Income (“SSI”) Benefits. For the reasons stated below, the Court REVERSES AND REMANDS the Commissioner's final decision.

I. PROCEDURAL HISTORY

Plaintiff initially filed an application for SSI benefits on March 8, 2005, alleging disability commencing on December 22, 1997, the date of his birth. ² [Record (hereinafter “R”) 48–51]. Plaintiff's application was denied initially and on reconsideration. [R23–24, 35–38, 41–44]. Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). [R33]. An evidentiary hearing was held on March 26, 2008. [R375–400]. Following the hearing, the ALJ issued an unfavorable decision on June 27, 2008. [R9–22]. Plaintiff sought review of the ALJ's decision and submitted additional records for the Appeals Council to review. [ See R374A–374G]. The Appeals Council denied Plaintiff's request for review on January 29, 2009, rendering the ALJ's decision the final decision of the Commissioner. [R2–5, 8].

Plaintiff then filed a civil action in this Court on March 26, 2009, seeking review of the Commissioner's final decision. LaShauna Russell o/b/o C.G. v. Michael J. Astrue, Civil Action File No. 1:09–CV–01123–AJB. [Doc. 2]. The answer and transcript were filed on December 1, 2009. [Docs. 13–14]. Plaintiff filed the initial brief on January 4, 2010, [Doc. 17], and the Commissioner filed a response on January 28, 2010, [Doc. 18]. Plaintiff did not file a reply brief. [ See Dkt.]. The undersigned held a hearing on March 5, 2010. [ See Doc. 19]. The matter is now before the Court upon the administrative record, oral argument, and the parties' pleadings and briefs and is ripe for review pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g).

II. STATEMENT OF FACTSA. Evidence before the ALJ

1. Administrative Records

A March 10, 2005, disability report indicated that Plaintiff's asthma was his disabling illness. This illness prevented him from running or doing other activities outside. [R73]. Plaintiff indicated that he had received treatment from Dr. Faull Trover from 1997 through 2005 and from the Newton General Hospital for this same period. [R73–74]. Plaintiff indicated that he was taking four medications for his asthma, none of which caused side effects—Albuterol, Prednisone, Singulair Tab, and Singulair. [R74]. At the time of the disability report, Plaintiff had completed kindergarten and was attending elementary school. [R76]. He had not been tested for behavioral problems and was not in special education classes. [R76].

In a March 2005 Function Report, Plaintiff indicated that he sometimes had trouble seeing. [R95]. He had no trouble with hearing and talking. [R95–96]. Plaintiff's ability to communicate was limited because he could not deliver telephone messages, repeat stories, tell jokes accurately, explain why he did something, speak in complex sentences, and talk with family. [R97]. Plaintiff was unsure whether his learning was limited because he could not: read, read letters, print letters, write in long hand, write simple stories, perform addition or subtraction, understand money, or tell time. [R98]. Plaintiff's physical abilities were limited because he could not run, use roller skates, swim, or dress/undress dolls. [R99]. Plaintiff's impairment prevented him from playing team sports, but he could make friends and get along with adults. [R100]. Plaintiff's impairment interfered with his ability to take a bath, wash his hair, hang up his clothes, help around the house, get to school on time, and accept criticism. [R100]. Plaintiff had problems working on arts and crafts projects. [R102].

In an August 5, 2005, disability report—appeal form, Plaintiff listed four medications that he was taking for asthma—Singulair, Flovent, Albuterol Sulfate, and Albuterol Inhaler. [R59]. The Singulair made Plaintiff nervous while the Flovent increased Plaintiff's heart rate. [ Id.]. Plaintiff indicated that his illness made it difficult for him to care for his daily needs and that he was more limited than his initial disability report. [R60].

2. Medical Records

On December 28, 1997, Plaintiff went to the Newton General Hospital (“Newton Hospital”) emergency room for stuffy nose and congestion. [R112]. He was diagnosed with a viral infection and instructed to take Tylenol for his fever and to see a doctor. [R114].

Plaintiff was seen by Dr. Faull Trover on December 29, 1997. The doctor noted that Plaintiff was one week old and would be rechecked at one month. [R314]. Dr. Trover saw Plaintiff four times in February 1998 for diaper rash, congestion, cough, facial rash, and ear infections. [R312–14].

Plaintiff returned to the Newton Hospital emergency room on March 2, 1998, with a head cold and “chocking with coughs.” [R121]. Plaintiff was given antibiotics, and his mother was instructed on temperature control. [R122–23]. Dr. Trover saw Plaintiff the following day and diagnosed Plaintiff with acute obstructive nasopharyngitis (inflammation of the nose and pharynx) ³ and diaper rash. [R311].

Dr. Trover saw Plaintiff on March 12, 1998, for nasal congestion and a cough. He was diagnosed with acute pharyngitis and bronchitis. [R310]. Plaintiff presented with the same complaints and a low grade fever to Dr. Trover on March 23. Dr. Trover gave the same diagnosis of acute pharyngitis and bronchitis. [R309].

Plaintiff was seen at the Newton Hospital emergency room on March 24, 1998, because he was crying and would not sleep. [R131, 133]. The doctor's notes are largely illegible, but indicate that Plaintiff had severe diaper rash. [R131]. Plaintiff was given a prescription for his congestion. [R133].

Plaintiff went to Dr. Trover on May 4, 1998, because of wheezing and a cough. Plaintiff was diagnosed with bronchial asthma, bronchitis, and acute pharyngitis and prescribed Proventil nebulization treatment (a process by which a machine delivers medication that relaxes and opens air passages as a mist that can be inhaled). [R309]. One month later, Dr. Trover saw Plaintiff for nasal drainage, a cough, and wheezing at night. Dr. Trover diagnosed Plaintiff with acute pharyngitis and tracheobronchitis (inflammation of the trachea and bronchi), and noted that he would watch for central pneumonia. Plaintiff was told to elevate his head and chest, take Tylenol or Advil, take Zithromax (an antibiotic), and take Prednisolone liquid. [R308]. On July 30, 1998, Dr. Trover diagnosed Plaintiff with a right ear infection and bronchial asthma. [R307].

In August 1998, Plaintiff was seen at Newton Hospital for shortness of breath and a night cough. He was diagnosed with asthma, [R141], and he was discharged in stable condition. [ See R144]. An x-ray revealed a normal chest film. [R148].

On September 10, 1998, Dr. Trover saw Plaintiff for ear pain, nasal drainage, and cough. Plaintiff was diagnosed with an acute right ear infection. [R307].

On September 23, 1998, Plaintiff went to Newton Hospital complaining of wheezing. [R149]. He was diagnosed with having an acute asthma episode. [R151]. An x-ray revealed pulmonary hypoinflation, but no acute abnormality. [R159].

On November 27, 1998, Plaintiff complained of wheezing, cough, and a rash at Dr. Trover's office. He was assessed with Reactive Airway Disease exacerbation and mild diaper rash for which he was prescribed medication. [R306].

Dr. Trover saw Plaintiff on January 22, 1999, for nasal drainage, cough, and low-grade fever. Plaintiff was diagnosed with acute tracheobronchitis, told to rest, take fluids, take Tylenol, and prescribed Azithromycin (antibiotic). [R306]. Plaintiff returned to Dr. Trover on February 16, 1999, with the same symptoms and was diagnosed with acute respiratory tract infection for which Plaintiff was given an antibiotic. [R305]. Dr. Ronald Eith saw Plaintiff on February 25, 1999, for a cough and congestion. Dr. Eith diagnosed Plaintiff with asthma and prescribed an antibiotic, Prelone (a steroid) ⁴, and Proventil syrup. [R305]. Dr. Trover diagnosed Plaintiff with tracheobronchitis on March 9, 1999, and prescribed rest, fluids, Tylenol, and an antibiotic. [R304]. Plaintiff was again diagnosed with tracheobronchitis on June 1, 1999, July 26, 1999, August 11, and August 24,1999. [R303–02].

On December 15, 1999, Dr. Trover diagnosed Plaintiff with an upper respiratory tract infection. Thirteen days later he diagnosed Plaintiff with acute tracheobronchitis. [R301]. On February 3, 2000, Dr. Trover determined that Plaintiff had tracheobronchitis, and he diagnosed Plaintiff on February 25 with bronchial asthma and respiratory tract infection. [R300].

On July 27, 2000, Plaintiff was seen for nasal drainage, cough, and a low grade fever, which led Dr. Trover to diagnose him with tracheobronchitis. The next day Plaintiff was lethargic and had pain when he breathed. Plaintiff was also wheezing. Dr. Trover diagnosed Plaintiff with “[b]ronchial asthma-acute exacerbation-mild.” [R299]. Dr. Trover diagnosed Plaintiff on August 22, 2000, with tracheobronchitis after he presented with nasal drainage, cough, and low grade fever.

Plaintiff was seen on November 27, 2000, for low grade fever and cough. Dr. Trover determined that Plaintiff had...