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Esters v. Colvin

United States District Court, N.D. Illinois, Eastern Division

May 27, 2014

CAROLYN W. COLVIN[1], Commissioner of Social Security, Defendant.


JEFFREY COLE, Magistrate Judge.

Kimberly Esters seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act. 42 U.S.C. § 1382c(a)(3)(A). Ms. Esters asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.



Ms. Esters applied for DIB and SSI on September 22, 2009, alleging that she had become disabled on January 16, 2001, due to asthma and chronic bronchitis. (Administrative Record ("R.") 3, 166-68, 172). Her application was denied initially and upon reconsideration, and Ms. Esters continued pursuit of her claim by filing a timely request for a hearing. An administrative law judge ("ALJ") convened a hearing and, after considering all of the evidence presented, found Ms. Ester not disabled. (R. 135-44). Ms. Esters filed an administrative appeal and was granted a remand of her claim back to the ALJ. (R. 115-117). The same ALJ again found her not disabled. (R. 77-87). Ms. Esters filed another administrative appeal and was, again, successful, and her claim was remanded to a different ALJ. (R. 61-63).

On July 13, 2009, the ALJ convened a hearing at which Ms. Esters, represented by counsel, appeared and testified. In addition, Dr. Fred Fishman testified as a medical expert and Thomas Dunleavy testiifed as a vocational expert. (R. 1253-1336). On January 29, 2010, the ALJ issued a decision finding that Ms. Esters was disabled, but only from January 16, 2001, to May 31, 2002. After May 31, 2002, the ALJ determined that Ms. Esters could perform sedentary work that did not involve climbing ladders, ropes, or scaffolds; kneeling crouching, or crawling; working at height or around hazards; or exposure to irritants like extreme temperatures, humidity, dust, fumes, odors, gases; any more than very little climbing of stairs and ramps. Ms. Esters could only occasionally stoop or reach overhead, and could do very little climbing of ramps and stairs. (R. 34). Despite all these limitations, the ALJ relied on the testimony of the vocational expert to determine that Ms. Esters could still perform jobs that existed in significant numbers in the economy, such as assembler, visual inspector, or cashier. (R. 44-45). The ALL's decision then became the final decision of the Commissioner when the Appeals Council denied Ms. Ester's request for review of on March 8, 2012. (R. 7-9). See 20 C.F.R. §§ 404.955; 404.981. Ms. Esters has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).

The record in this case is a thirteen-hundred-page stack of often illegible medical records cobbled together in no particular order. To relate, in detail and at length, those medical records would be painstaking and, to some degree, a fool's errand. That's demonstrated by review of Ms. Esters' submissions and the ALJ's decision, which both include the inevitable mistakes and misinterpretations. The Commissioner, perhaps wisely, made no attempt to set forth the medical record. As such, the focus here will be confined to Ms. Esters' arguments and the evidence pertinent to them. Beyond that, suffice it to say that Ms. Esters' has a substantial history of treatment for severe asthma, as well as a history of insulin-controlled diabetes and obesity.




Asthma is clearly Ms. Esters' most significant problem. In that regard, she argues that the ALJ was wrong when he determined her condition did not meet or equal the asthma listing in the Listing of Impairments in the Commissioner's regulations. If a claimant's impairment meets or equals the criteria of one of the listings, they are found disabled and the ALJ's analysis is at an end. 20 C.F.R. § 404.1525(a); 20 C.F.R. §404.1520(a)(4)(iii); Craft v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). The burden is on Ms. Esters to show that her asthma meets a listing, and she must show that it satisfies all of the various criteria specified in the listing. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006).

A claimant is to be found disabled due to asthma if there is evidence of asthma attacks:

in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an
evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.03B. Section 3.00C defines asthma attacks as "prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting." Ms. Esters' first problem with the ALJ's listing analysis is that he found she met the listing from only January 16, 2001, through May 31, 2002. (R. 29). Ms. Esters contends she met the listing through July 12, 2002.

The evidence supports Ms. Esters' contention. Here are the asthma attacks she suffered during the salient period:

1. January 17, 2001 - 2 attacks. Ms. Esters had a three-day hospital stay to treat shortness of breath due to apparent allergic reaction. She was treated with ...

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