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Walunga v. Colvin

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

June 23, 2014

Carol Walunga, Plaintiff,
Carolyn Colvin, Acting Commissioner of Social Security, Defendant.


ELAINE E. BUCKLO, District Judge.

Plaintiff Carol Walunga ("Walunga") brought this action against Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner"), seeking review of the denial of her application for disability insurance benefits. She filed a motion for summary judgment, claiming that the Commissioner's final decision that Walunga was not disabled and thus not entitled to Supplemental Security Income Benefits ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. ยงยง 405(g), 416 (i), 423(d) (2009), was not supported by substantial evidence. For the reasons that follow, Walunga's motion is granted in part and denied in part, and this case is remanded to the Social Security Administration for proceedings consistent with this opinion.


Procedural History

In May 2006, Walunga filed her initial application for SSI, claiming that she had been disabled since January 1, 1999, as a result of various ailments, including hearing loss in both ears; severe asthma; back, hip and knee pain; and congestive heart failure. Her claim was denied on September 7, 2006, and upon reconsideration on December 12, 2006. Walunga then requested a hearing, which took place on April 23, 2008, before an administrative law judge ("ALJ"), who denied the claim on November 20, 2008. Walunga requested that the Appeals Council review the ALJ's final decision, and on August 12, 2010, the Appeals Council remanded Walunga's claim back to an ALJ. Subsequently, Walunga appeared at a second hearing, along with a vocational expert ("VE"). An ALJ again denied all of Walunga's claims. She again requested that the Appeals Council review the ALJ's decision denying her benefits, but that request was denied. When the Appeals Council denied Walunga's request for review, the Commissioner's decision became final, Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005), and Walunga filed a claim in this Court.

ALJ Ruling

In his reaching his decision, the ALJ employed the five-step evaluation process for determining whether a claimant is disabled. That process requires a determination of (1) whether the claimant is presently employed; (2) whether the claimants's impairments or combination of impairments is severe; (3) whether the claimant's impairments meet or medically equal a listed impairment that the Social Security Administration has found to be disabling; (4) whether the claimant has the residual functional capacity to perform her past work; and (5) whether the claimant is unable to perform any other work in the national economy. 20 C.F.R. 404.1520; Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). The steps are sequential; an affirmative answer at step three or step five results in a finding that the claimant is disabled. Craft v. Astrue, 539 F.3d 668, 673-74 (7th Cir. 2008). The claimant has the burden of proof on steps one through four; the Commissioner assumes the burden of proof at step five. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).

The ALJ found that Walunga had severe impairments, including obesity, congestive heart failure with history of mild concentric left ventricular hypertrophy, osteoarthritis bilateral knees, perforated right eardrum with profound hearing loss, chronic obstructive pulmonary disease ("COPD"), asthma with shortness of breath, degenerative changes of the lumbar spine, and degenerative changes in the left shoulder glenohumeral joints. He did not, however, find that she suffered from "an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart B, Appendix 1 (20 C.F.R. 416.920(d) and 416.926). Specifically, he declined to find at Step Three that Walunga was disabled by her asthma under Listing 3.03 B or chronic heart failure under Listing 4.02.

Asthma, Listing 3.03B

The Listing for asthma "specifically includes a requirement for continuing signs and symptoms despite a regimen of prescribed treatment." 20 C.F.R. Pt. 404, Subpt. P, App 1, 3.00. It goes on to define asthma attacks as

prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchiodilator or antibiotic administration or prolonged inhalational bronchiodilator therapy in a hospital, emergency room or equivalent setting. Hospital admissions are defined as inpatient hospitalizations for longer than 24 hours. The medical evidence must also include information documenting adherence to a prescribed regimen of treatment as well as a description of physical signs. For asthma, the medical evidence should include spirometric results obtained between attacks that document the presence of baseline airflow obstruction.

20 C.F.R. Pt. 404, Subpt. P, App 1, 3.00C. Listing 3.03B also states that a claimant is impaired when asthma attacks

in spite of prescribed treatment and requiring physician intervention, occur[] at least once every 2 months or at least six times per 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 frequency of attacks. Listing 3.03 Asthma, 20 C.F.R. Pt. 404, Subpt. P, App 1, 3.03B.

In reviewing Walunga's medical history, the ALJ found that although she had listed numerous visits to the hospital, those visits did not total the requisite six visits for asthma attacks within a year. Relevant to this appeal, the ALJ evaluated Walunga's hospital visits from December 27, 2010, February 8, 2011, May 6, 2011, and May 14, 2011, and found that not all of them qualified as hospitalizations for an asthma attack under the Listing.

For example, the ALJ reviewed Walunga's hospital records from December 27, 2010, when she was admitted for chest pain and pneumonia, and noted that the "[p]hysical examination revealed that the claimant was not in acute respiratory distress, and her lungs were clear." Id. at 5. He also noted that Walunga's "[c]ounsel admits this visit was not for asthma, " which, along with the fact that the treating physician's notes indicate that Walunga suffered only "mild respiratory distress, " with no evidence of acute asthma symptoms, led the ALJ to conclude that this visit did not count as a hospitalization for asthma as contemplated by Listing 3.03B.

Of Walunga's February 8, 2011 admission to the hospital for shortness of breath, the ALJ noted that the hospital records indicated that "her provisional diagnosis included chest pain and psoriasis." Id. Because Walunga's "shortness of breath was noted to be possibly related to her eczema, " the examination of her "lungs were clear, " she was "diuresed with Lasix" to treat her heart condition, and was given medication for psoriasis, the ALJ did not find it was a hospitalization for an asthma attack as defined by the Listing.

The ALJ also evaluated Walunga's May 6, 2011 visit to the hospital where she reported a variety of ailments, including shortness of breath, burning skin, and black stools. Id. At the hospital, she "was given the differential diagnosis of astam[ sic ], CHF exacerbation, COPD, pulmonary edema, and reactive airway disease." Id. at 5. However, the ALJ noted that in the admissions record, Walunga stated that she suffered from shortness of breath "sometimes, " but denied experiencing it at the time of admission, thus leading the ALJ to conclude this was not a hospitalization for an asthma attack under the Listing. Id.

The ALJ similarly declined to count Walunga's May 14, 2011, hospitalization as one for asthma, even though she "complained of shortness of breath and was found to have COPD exacerbation." Id. at 6. Upon review of the records, he determinated that she "did not appear to be in any acute respiratory distress upon physical examination." Id. at 6.

In concluding his analysis of Walunga's asthma, the ALJ, with citation to the criteria outlined in Listing 3.03B, explained that the Listing "requires attacks" that lead to hospitalization "for the control of asthma, " and found that in many of Walunga's hospitalizations she has failed to demonstrate the requisite acute respiratory distress and subsequent treatment to meet Listing 3.03B. Because "[h]er hospital visits do not reveal the intensive treatment required by the Listing, " and the record ...

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