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January 29, 2003


The opinion of the court was delivered by: Geraldine Soat Brown, Magistrate Judge


Plaintiff DeSean Holland, through his grandmother and guardian Clydie Mayfield, filed a claim for Social Security disability benefits in 1998. (R. 53.)*fn1 The Commissioner of the Social Security Administration ("SSA") denied Plaintiff's application for Disability Benefits. (R. 29.) Plaintiff requested and received a hearing before an administrative law judge ("ALJ") who rendered an unfavorable decision. (R. 16.) After the Appeals Council of the SSA's Office of Hearings and Appeals ("Appeals Council") declined Plaintiff's request for review (R. 4), Plaintiff filed the present action for judicial review pursuant to 42 U.S.C. § 405 (g). [Dkt# 1.] The parties have filed cross—motions for summary judgment under Fed.R.Civ.P. 56 [dkt## 13, 17], and have consented to the jurisdiction of a magistrate judge under 28 U.S.C. § 636 (c)(1). [Dkt# 8, 9.] Thus, the decision of this court constitutes the final ruling on the cross-motions. For the reasons set forth below, Defendant's motion for summary judgment is DENIED, Plaintiff's motion for summary judgment is GRANTED, and the case is remanded back to the Commissioner for further proceedings.


Plaintiff is a child who suffers from asthma and behavioral problems. At the time of the hearing before the ALJ in February 1999, Plaintiff was nine years old. (R. 201.) He has been hospitalized for treatment of his asthma, in conjunction with other symptoms, on at least four occasions. (R. 130-155.) His first documented hospitalization was for six days in 1991, just prior to his second birthday. (R. 131.) He was brought to the emergency room complaining of coughing and wheezing. (Id.) He was diagnosed with pneumonia and asthma*fn2 by one doctor, and asthmatic bronchitis and mild dehydration by another, (R. 131-133.) Plaintiff's wheeze persisted throughout his stay at the hospital and he was discharged with a "trace" wheeze. (R. 131.) Plaintiff's second hospitalization was in 1993. (R. 134.) He was brought to the emergency room with wheezing and shortness of breath. (R. 135.) He stayed overnight and was diagnosed with status asthmaticus. (Id.) Plaintiff's third hospitalization was in 1995. (R. 142.) He was again brought to the emergency room with wheezing and severe shortness of breath and was hospitalized for four days. (R. 143.) He was diagnosed with status asthmaticus with impending respiratory failure and a history of chronic asthma. (Id.) Plaintiff was treated with intravenous steroids and antibiotics, and discharged in stable condition. (Id.) Plaintiff's most recent hospitalization documented in the evidence was in 1996 when he was admitted from the emergency room with severe asthma and treated For eight days. (R. 146-148.) Plaintiff's medical records allude to additional hospitalizations but these are not reflected in the record. (R. 144.)

In addition to his hospitalizations, Plaintiff has also been seen in hospital emergency rooms on three additional occasions. In 1995, Plaintiff was twice admitted to the emergency room with asthma. (R. 136-137, 139.) In 1997, Plaintiff was seen in the emergency room with wheezes. (R. 157.)

Dr. Janice Krakora-Looby has been treating Plaintiff since December, 1996. (R 168.) In her response to a Bureau of Disability Determinations questionnaire, Dr. Krakora-Looby characterized Plaintiff's symptoms as episodic coughing and wheezing accompanied by acute exacerbations. (R. 168.) She noted that Plaintiff's asthma is aggravated by humidity, exercise and respiratory infections. (Id.) She reported that he has responded well to medication and, as to restrictions on activity, she listed "none." (R. 169.)

In 1996 and part of 1997, Plaintiff was seen by Dr. Gilbert Lanoff who treated Plaintiff with weekly allergy shots. (R. 91.) According to Plaintiff's grandmother, this treatment was discontinued when Plaintiff's grandmother took legal custody of Plaintiff and his insurance changed. (R. 221.)

Over the course of 1998 and 1999 Plaintiff was prescribed an Albuterol inhaler,*fn3 an Azmacort inhaler,*fn4 an Intal inhaler*fn5 and a Vanceril inhaler.*fn6 (R. 108-110.) He was also prescribed Albuterol solution, Singulair tablets,*fn7 Prednisolone syrup*fn8 and Cromolyn solution. (Id.) Plaintiff's pharmacy records indicate six prescriptions in 1998 and 1999 for the corticosteroids Prednisolone and Prelone, (Id.) Plaintiff's grandmother testified that these medications were prescribed For five day courses of treatment. (R. 215.) She also testified that she had treated Plaintiff twice in 1998 and 1999 with five day courses of Prednisolone on her own initiative, relying on an older prescription and leftover medication. (R. 216.) She testified that she undertook this treatment as she could not take more time off work and had learned to anticipate the doctor's treatment. (Id.) In addition, Dr. Krakora-Looby indicated that on one occasion Plaintiff received oral corticosteroids in her office us a form of emergency therapy, and her records also reflect two five-day courses of Prelone. (R. 168, 181, 183.)

Plaintiff's grandmother testified that she treats Plaintiff with a nebulizer*fn9 four times a day and gets up every night to treat him, (R. 212.) She observed that his treatment makes him "antsy" and "touchy." (R. 217.) She stated that becoming upset, any type of play, changes in the weather, cigarette smoke and the environment outside of the home can all trigger Plaintiff's asthma. (R. 213.) According to his grandmother, Plaintiff is unable to participate in sleepovers, birthday parties and sports and spends most of his time inside the home. (R. 57.) She also testified that he is never free of symptoms. (R. 213.)

Plaintiff testified that every time he runs for a while he gets a wheeze that is not alleviated by treatment. (R. 204.) He also testified that he sometimes gets wheezes even without exercise and he often wakes up in the middle of the night because of wheezing or coughing. (R. 207-208.) The onset or a wheeze does not prevent Plaintiff from continuing to play, (R. 204), and lie participates in physical education classes at school. (R. 114.) However he must use his inhaler beforehand. (R. 182.)

Plaintiff was evaluated in 1998 by two consultive physicians from the Bureau of Disability Determination Services ("DDS"), Dr. Ference and Dr. Pardo, who completed Childhood Disability Evaluation Forms. Both physicians found that Plaintiff's asthma was severe, but did not meet or equal the severity of a listed impairment. (R. 163, 171.) They both also found that Plaintiff had marked limitation in his motor functioning. (R. 165, 173.) Neither DDS doctor indicated that Plaintiff evidenced limitation in his social skills or his concentration, persistence and pace. (Id.)

Plaintiff has difficulties at school. He repeated the first grade, and for some time was meeting weekly with the school social worker. (R. 99, 116.) In response to a School Activities Questionnaire, his first grade teacher reported that he occasionally bullies other students, often does not pay attention to instructions and can be disruptive in class. (R. 127.) She also reported that he will occasionally crawl or cry when he cannot get his way. (R 128.) She described him as a needy child who wants to be the center of attention. (R. 129.) She reported that she has had some success with the use of behavioral modification techniques. (R. 100.) The school social worker reported similar behavior. (R. 118-119.) His second grade teacher stated that he is growing in his basic skills areas and takes pride in his work but still requires significant guidance and supervision. (R. 115.) Plaintiff's second grade report card reflects a satisfactory level of effort in almost all of his classes. (K. 113-114.) Plaintiff's grandmother has observed that Plaintiff's teacher is frustrated by his disruptive behavior. (R. 217.)


The Social Security Act provides for limited judicial review of a final decision of the Commissioner (effectively that of the ALJ where, as here, the Appeals Council has denied the applicant's request for review). Where the ALJ commits an error of law, "reversal is required without regard to the volume of the evidence in support of the factual findings." Imani v. Heckler, 797 F.2d 508, 510 (7th Cir. 1986). With respect to the ALJ's conclusions of fact, the reviewing court's role is limited. There the role of the district court is only to determine whether the decision of the ALJ is supported by substantial evidence in the record. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir. 1993). In reviewing the Commissioner's decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); Brown v. Chater, 913 F. Supp. 1210, 1213-14 (ND. Ill. 1996)(Bucklo, J.). Thus, the court does "not substitute [its] own judgment for that of the ALJ." Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). Rather, the court must affirm a decision if it is supported by substantial evidence and the ALJ has made no error of' law, Herr v. Sullivan, 912 F.2d 178, 180 (7th Cir. 1990); Edwards v. Sullivan, 985 F.2d 334, 336-37 (7th Cir. 1993). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

When evaluating a disability claim the ALJ must consider all relevant evidence and may not select and discuss only that evidence that favors his ultimate conclusion. Herron, 19 F.3d 329, 333. Where conflicting evidence allows reasonable minds to differ, the responsibility for resolving the conflict falls on the ALJ, not the court. Herr, 912 F.2d 178, 181; see also Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989) (the ALJ has the authority to assess medical evidence and to give greater weight to that which he finds more credible). Where there is a conflict between medical opinions, the ALJ may choose between those opinions but may not substitute his own lay opinion for that of the medical professionals, Davis v. Chater, 952 F. Supp. 561, 566 (N.D. Ill. 1996)(Keys. MI.). A treating physician's opinion regarding the nature and severity of a medical condition is ...

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