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Moten v. Barnhart

September 27, 2007

ANGELA MOTEN, O/B/O JANISHA C., PLAINTIFF,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Virginia M. Kendall, United States District Judge

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Angela Moten ("Moten") brings this action on behalf of her daughter, Janisha R. Carter. Janisha was found disabled within the meaning of the Social Security Act beginning April 20, 1995. As part of a continuing disability review, an ALJ found that Janisha had improved medically and was no longer disabled as of May 1, 2002. The Social Security Appeals Council declined to review the ALJ's decision. Plaintiff now seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the Social Security Administration's ("the Commissioner") final decision that Janisha is no longer disabled.The Commissioner has moved for summary judgment; Plaintiff has not responded to the motion. Because the Administrative Law Judge ("ALJ") did not adequately develop the record during the administrative hearing, this case is remanded for a rehearing.

Medical and Procedural History

Janisha Carter ("Janisha") has a personal and family history of asthma. In the year after her birth, Janisha's mother, Moten,*fn1 took her to the hospital emergency room, due to her asthma and other health issues, on several occasions. (R. 70-73, 75-77, 80-84). On April 27, 1995, when Janisha was roughly 15 months old, Moten filed an application on her behalf for Child's Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. (R. 21-23). The application listed Janisha's asthma as the basis for receiving disability benefits.

Janisha's Initial Disability Determination

The Disability Determination Services ("DDS"), the state agency tasked with determining disability benefit eligibility, acquired information regarding Janisha's medical history and condition. Janisha's treating physician, Dr. N. Pereira, filled out a report stating that Janisha had recurrent exacerbations of bronchial asthma, that her chest exhibited "intercostal retraction" and "expiratory wheeze," and that her general symptoms included dyspnea at rest, coughing, and wheezing. (R. 86-87). Dr. Pereira also noted that Janisha was experiencing asthma episodes approximately every two weeks, after which it would take ten days for her to return to normal activity. (R. 86). During her emergency room visits, Janisha was treated with bronchodilators (Albuterol), oral corticosteriods, and supplemental oxygen. (Id.) Ultimately, Dr. Pereira recommended that Janisha receive disability benefits. (R. 87). On July 17, 1995, after conducting an Individualized Functional Assessment of Janisha, medical consultants for the DDS determined that her claim for disability benefits should be denied. (R. 33-34a). Specifically, the medical consultants found that Janisha: (1) had visited the emergency room only two times in the past year; (2) was adequately performing her age appropriate activities; and (3) had showed improvement since starting on inhalation medication. (R. 34a). As such, they concluded that while her impairment was "severe," it was not of listing-level severity.

(Id.) The Social Security Administration ("SSA") sent Moten a letter, dated July 31, 1995, stating that Janisha's claim had not been approved. (R. 35).

On September 11, 1995, Moten filed a request for reconsideration. (R. 39-40). Approximately one month later, on October 10, 1995, Dr. Pereira again reviewed Janisha's condition for the DDS, this time stating that Janisha's chronic bronchial asthma was "under control" due to therapy. (R. 88-89). The SSA then sent Moten an additional letter, dated November 6, 1995, informing her that a physician and a disability examiner had independently reviewed Janisha's claim and that it remained unapproved. (R. 42).

On November 9, 1995, Moten filed a request for a hearing before an ALJ. (R. 45-51). At this first administrative hearing in August 1997, Moten appeared without representation of counsel and testified on Janisha's behalf. The court appointed medical expert testified that while Janisha's impairment did not meet the disability listing requirements for asthma, her impairment was medically equivalent to that listing. (R. 103-04). The ALJ agreed with the expert's assessment and on August 27, 1997, issued a decision finding Janisha to be disabled within the meaning of the Social Security Act. (R. 104).

Janisha's Continuing Disability Review

After the ALJ's determination that Janisha was disabled, several years passed during which she continued to have asthma problems requiring check-ups and occasional emergency room visits. Notably, on August 1, 2001, Janisha was admitted to the emergency room at Genesis West Hospital for an asthma exacerbation. (R. 234). Her chest x-ray and a subsequent CT scan showed that Janisha had upper right lobe atelectasis. (R. 234, 236, 251). Janisha's treating physician at that time, Dr. Garvin, referred her to Dr. Richard Ahrens at the Pediatric Allergy & Pulmonary Clinic for an asthma evaluation. (R. 253-256). At the time of Dr. Ahrens's evaluation, Janisha's medications included a Cromyln nebulizer, a Zopenex nebulizer, and an Albuterol metered-dose inhaler. (R. 253). Dr. Ahrens provided Janisha with an inhaled corticosteroid, a Maxair Autohaler, and Pulmicort, and advised her to stop using her Cromolyn and Zopenex nebulizers. (R. 255).

Janisha returned to the Pediatric Allergy & Pulmonary Clinic on January 18, 2002 for a follow-up examination. (R. 262). Dr. Ahrens noted that Janisha had not required any hospitalizations or emergency room admissions in the four and a half months since her previous visit. (Id.) Furthermore, Dr. Ahrens reported that Moten had told him that "on the whole, Janisha is doing great" and that she had noticed a big difference in the frequency of Janisha's symptoms since her medications were changed. (R. 262). Dr. Ahrens concluded that Janisha was doing well enough that her Pulmicort dose could be reduced. (R. 263).

In May of 2002, Janisha's case was selected for review as part of the SSA's continuing disability review process. (R. 123); see 20 C.F.R. § 416.994a. In assessing whether Janisha continued to meet the disability guidelines, the DDS reviewed a questionnaire filled out by Janisha's teacher, reports from her doctors and her hospital records. (R. 123). After finishing the review, on May 30, 2002, the SSA sent a "Notice of Disability Cessation" to Moten informing her that Janisha no longer met the disability requirements and therefore no longer qualified for SSI. (Id.)

On June 14, 2002, Moten filed a request for reconsideration of the SSA's disability cessation decision. (R. 127-28). In a signed statement, dated June 17, 2002, Dr. Garvin noted that Janisha was on multiple medications to keep her asthma under control and asserted that her health status had not changed. (R. 272). On July 5, 2002, Dr. Everett A. Nitzke, a medical consultant for the DDS, reviewed the evidence and concluded that the severity of Janisha's impairment "does not meet or equal the severity of a listed impairment." (R. 274).

On August 27, 2002, a disability hearing took place during which a Disability Hearing Officer ("DHO") reviewed Janisha's medical reports pertaining to the issue of disability. (R. 154). Moten testified at the hearing via videoconference. (R. 140). After reviewing the evidence, the DHO determined that Janisha's less frequent asthma attacks and hospitalizations since the comparison point decision ("CPD") showed that her impairment had medically improved.*fn2 (R. 160). Further, the DHO concluded that Janisha's impairment did not meet any of the listed impairments. (Id.) Last, the DHO found that while Janisha's asthma constituted a "severe impairment," it did not functionally equal a currently listed ...


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