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Domingue v. Berryhill

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

April 21, 2017

Amy Domingue Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston United States Magistrate Judge.

         This is an action challenging the administrative law judge's (“ALJ”) denial of social security disability benefits to plaintiff Amy Domingue. See 42 U.S.C. §405(g). The ALJ concluded that plaintiff's asthma-related problems did not qualify as a severe impairment at Step Two of the five-step process used by ALJs to determine whether a claimant is disabled.


         In her opening brief, plaintiff summarized, in a four-and-a-half page, bullet-point list, each of the many asthma-related doctor visits and emergency room trips she made from September 2007 to November 2013. Based this summary, there were 39 visits over a six-year period.[2] Plaintiff reported, to varying degrees, similar asthma-related symptoms, including wheezing, a persistent cough, congestion, shortness of breath, and sinus pressure. She was typically treated with some combination of a nebulizer, antibiotics, and prednisone.[3] She was usually discharged several hours later and did not appear to ever have stayed more than a day.

         On November 20, 2013, a hearing was held before the ALJ. Plaintiff, represented by her current counsel, testified that she was then 37 years old, and was living with her husband and two teenage stepchildren. She previously worked as a sales associate, cashier, factory worker, and a debt collector. She stopped working because of absences due to her health problems. She described her current breathing problems as follows: “I constantly feel like [] I'm drowning []if I'm not sitting almost in a straight up and down position[.] I just []can't breathe[;] it hurts.” R. 31. Plaintiff testified that she used a nebulizer, and took Spiriva, Advair, Proventil, Gluconase, Singular, Dulera, and Bydureon. She testified that she used to go to the emergency room for her asthma problems but that she now usually would call her doctor who would send her directly to the Immediate Care Clinic. She estimated that she went to the clinic once or twice a month. She testified that she typically sits inside during the day while her husband goes to work. R. 43 (“Pretty much I just sit and read. Try to watch TV and keep at least my mind busy[.]”). When asked if she did anything for fun, plaintiff answered as follows: “I used to go hiking, camping, fishing. I did horseback riding. I used to be very active with the kids. And then I feel-every time I do we have to plan outings around if I can breathe or not.” R. 44.

         On April 15, 2014, the ALJ found plaintiff not disabled. At Step Two, the ALJ found that plaintiff's asthma was a medically determinable impairment, but also found that it was not a severe impairment. The ALJ's primary rationale was that plaintiff's “asthma is under control when she is compliant.” R. 18. The ALJ explained as follows:

Although she has repeatedly presented to emergency rooms for wheezing or shortness of breath, she was regularly provided with nebulizer treatment resulting in marked improvement, and discharged on the same date. The claimant's repeated improvement of her condition with nebulizer treatment also brings into the question just how often she has been compliant with using her own nebulizer at home. Medical records from OSF Medical Center repeatedly note that the claimant's nebulizer was broken, leaving her unable to use it.

R. 18. In addition to this rationale, the ALJ also noted that plaintiff underwent a pulmonary function evaluation by a specialist in January 2012 who concluded that plaintiff's asthma “was under suboptimal control and could not be considered severe with proper treatment.” Id. The ALJ also relied on the fact that plaintiff's activities were more extensive than she portrayed. As for the medical opinions, the ALJ noted that Dr. Towfig Arjmand completed an RFC assessment dated April 2, 2012, and he concluded that plaintiff was capable of working, although he noted that she should be limited to no more than medium work and should be subject to certain minimal environmental limitations. R. 20. The ALJ only gave this opinion “some weight” because Dr. Arjmand concluded that plaintiff's asthma qualified as a severe impairment at Step Two, a finding which the ALJ disagreed with.


         The broad outlines of plaintiff's argument for remand can be boiled down to a simple a proposition: she visited the emergency room or doctor's office 39 times over a six-year period for asthma exacerbations. She believes that this fact proves, in a self-evident way, that her condition was severe, certainly severe enough to meet the lenient standard required at Step Two of the analysis. More specifically, she argues that the ALJ improperly “played doctor” in concluding that plaintiff's hospital visits could have been lessened if she had consistently and properly used her nebulizer at home. Plaintiff further argues that, by deciding the case at Step Two, the ALJ did not consider whether she met a listing-specifically Listing 3.03B (asthma attacks) and Listing 3.07 (bronchiectasis). In response, the Government argues that the ALJ's decision at Step Two was correct but that, even if were not, any error is harmless.

         The Court agrees with plaintiff that it was premature to decide this case at Step Two. The Court notes that the Seventh Circuit has emphasized in several recent cases that the Step Two inquiry is meant to be only “a de minimis screening for groundless claims.” See Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016); O'Connor-Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (“The Step 2 determination is ‘a de minimis screening for groundless claims' intended to exclude slight abnormalities that only minimally impact a claimant's basic activities.”); Thomas v. Colvin, 826 F.3d 953, 960 (7th Cir. 2016). In Meuser, the Seventh Circuit remanded because the ALJ, in considering whether schizophrenia was a severe impairment, applied a too-demanding standard at Step 2 by “conflat[ing] Steps 2, 4, and 5.” 2016 WL 5682715 at *4. The ALJ followed a similar approach here in conflating all these steps into the Step Two analysis. Moreover, the Court concludes that the evidence of plaintiff's many hospital visits and documented problems is sufficient to meet this relatively lax standard of not being a “groundless claims.” The record in this case contains evidence that plaintiff was seen by many doctors, and insofar as this Court can tell, none of them questioned whether she was genuinely suffering from recurring asthma exacerbations of some degree.[4]

         The Court, thus, turns to the Government's harmless error argument. The harmless error doctrine applies when the court can conclude with certainty that the ALJ would reach the same conclusion absent the error. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Here, the Court is confident that the ALJ would reach the same result on remand even taking into account plaintiff's criticisms about doctor playing and other issues.

         The Court begins with plaintiff's assertion that she met two listings. In her opening brief, plaintiff states that her multiple hospital visits “would appear” would satisfy these listings “during multiple years.” Dkt. #12 at 7. As indicated by the hedge words “would appear, ” plaintiff's argument is provisional and undeveloped. She does not set forth the specific requirements, nor explain how each is met under the facts of this case. In its response brief, the Government provides a more systematic analysis and lays out the various requirements and then sets forth numerous reasons why plaintiff could not meet these requirements. See Dkt. # 17 at 7-9. To cite one example, the Government notes that, under listing 3.07, plaintiff was required to establish, with “appropriate imaging techniques, ” that she had bronchiectasis, and that plaintiff has not pointed to any diagnosis or an objective test such as a chest CT scan or chest x-ray. Id. at 7-8. The Court agrees with these arguments. In her reply, plaintiff does not address the latter argument or the others, except for one brief and conclusory reference to the fact that she received antibiotics. For these reasons, the Court finds that plaintiff has not met her burden of proving that she satisfies these requirements. See Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (“The applicant must satisfy all of the criteria in the Listing in order to receive an award of disability benefits [] under step three.”).

         The Court next turns to plaintiff's criticisms of the ALJ's reasoning. These criticisms are directed at the ALJ's Step Two finding but it is clear that they are the same arguments that would be relevant to a residual functional capacity (“RFC”) analysis at Step Four. As noted above, plaintiff focuses almost entirely ...

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