United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER United States Magistrate Judge
claimant, Janisha Renea Carter, began receiving disability
benefits for a chronic pulmonary condition and asthma in
April 1995, when she was about fourteen months old (R. 165).
Under the Social Security Act, children who receive
disability benefits must have their eligibility for benefits
redetermined by the Commissioner of Social Security within
one year after their eighteenth birthday, "applying the
criteria used in determining initial eligibility for
individuals who are age 18 or older." 42 U.S.C. §
1382c(a)(3)(H)(iii). On November 1, 2012, the Commissioner
informed Ms. Carter that her benefits would stop on January
31, 2013 (one year after she turned 18 years old), because
she was not disabled under the definition of disability for
adults (R. 161). After a hearing before a Social Security
disability officer, the denial of benefits was affirmed in a
written decision (R. 186-95).
Carter then sought and received a hearing before an
administrative law judge ("ALJ"), who denied her
claim in a written opinion (R. 13). The Appeals Council
denied Ms. Carter's request for review of the ALJ
decision, making it the final decision of the Commissioner
(R. 1-4). Ms. Carter now seeks reversal and remand of the
Commissioner's decision ending her Social Security
benefits (doc. # 21: Pl.'s Mot. for Summ. J.). The
Commissioner has filed a cross-motion asking the Court to
affirm its decision (doc. # 28: Def.'s Mot. for Summ.
J.). For the reasons that follow, we deny Ms. Carter's
motion and affirm the Commissioner's decision.
2008, Ms. Carter suffered an asthma attack so severe she had
to be intubated and put on a ventilator (R. 603). As she
neared her eighteenth birthday on January 30, 2012, however,
Ms. Carter's pediatric pulmonologist, Javeed Akhter,
M.D., noted that although her pulmonary function remained
below normal and she continued to have symptoms, she was
showing significant improvement with a medication regimen
that included Advair, Singulair, Prednisone, Albuterol
(ProAir), and Xolair injections (see R. 603,
371).Indeed, although Ms. Carter visited
the emergency room ("ER") several times in 2012 for
symptoms related to asthma, pulmonary function testing showed
only a mild to moderate degree of obstruction (R. 634, 637,
643, 659, 666, 670), and Dr. Akhter opined that Ms.
Carter's asthma, though severe, was "well
controlled" (R. 581). On October 11, 2012, a state
agency consultant opined that Ms. Carter's asthma was
"reasonably well-controlled," and there was no
evidence of limitations except to avoid concentrated exposure
to fumes, odors, dusts, gases, poor ventilation, and other
pulmonary irritants (R. 615-18).
following year, Ms. Carter began taking classes at Prairie
State College. On February 6, 2013, she wrote on her
disability services form for school that her asthma caused
"shortness of breath but nothing major;"
nevertheless, she sought certain sleeping accommodations and
extra time to get to class (R. 1068). On April 24, 2013, Ms.
Carter went to the ER for wheezing and shortness of breath
after using marijuana the previous day (R. 702). On July 19,
2013, she again visited the ER for shortness of breath and
chest tightening (R. 711). Ms. Carter was treated and
diagnosed with "mild" asthma exacerbation and acute
bronchitis (R. 716). On August 26, 2013, Ms. Carter's
primary care physician, Kevin Gordon, D.O., observed slight
wheezing (R. 1143).
October 1, 2013, Ms. Carter began treatment with adult
pulmonologist Ravi Sundaram, D.O. (R. 771). Dr. Sundaram
performed a spirometry test, which measures the largest
amount of air one can forcefully exhale after breathing in
deeply (forced vital capacity or "FVC") and how
much air can be forced from one's lungs in one second
(forced expiratory volume or "FEV1"); lower FEV1
readings indicate more significant obstruction.Dr. Sundaram
found Ms. Carter had "severe obstructive ventilatory
defect, moderate bordering severe with FEV1 of 1.65
[liters]" (R. 772). Dr. Sundaram prescribed Advair,
Singulair, Prednisone, ProAir and Nasonex, and opined Ms.
Carter may need to restart Xolair injections (R. 773-74).
October 20, 2013, Ms. Carter was admitted to the ER for two
days with chest pain, coughing, wheezing and acute asthma
exacerbation (R. 727). She reported that her symptoms
worsened when she visited a friend with dogs, and Ms.
Carter's mother reported that she had not been using
Advair regularly or taking Singulair (Id.), The
treatment provider wrote that the exacerbation was likely
triggered by an allergic reaction to dogs and noncompliance
with asthma medications (R. 733).
November 14, 2013, Ms. Carter followed up with Dr. Sundaram.
Spirometry showed moderately severe obstruction, which was a
little better than at the last visit, but not statistically
changed (R. 769). On December 19, 2013, spirometry continued
to show moderately severe obstruction, and Ms. Carter
reported needing her rescue inhaler "quite a bit"
(R. 766). Dr. Sundaram noted that his office was going
through the insurance authorization process to restart Ms.
Carter on Xolair because her symptoms were much better
controlled before she stopped taking it (Id.). He
prescribed a high dose of Advair twice daily, Singulair
daily, and Pro Air, and he recommended that Ms. Carter avoid
exposure to animals (R. 767). On January 23, 2014, Ms.
Carter's spirometry was a little worse (R. 764). Dr.
Sundaram noted Ms. Carter had not been taking Singulair
consistently, and she had not yet restarted Xolair
(Id.). His office was communicating with the
infusion center at St. James hospital to get Xolair started,
and he stated that Ms. Carter needed to take Singulair more
March 15, 2014, Ms. Carter had a consultative examination
with Albert Osei, M.D., for the Department of Disability
Services ("DDS") (R. 789). Ms. Carter reported she
was in her second year of college and working 30 to 40 hours
per week at a nursing home (R. 790). She had restarted Xolair
injections the previous week, and she could vacuum, cook a
full meal, drive, walk up to two blocks, stand continuously
and sit without limitation (Id.). The following
month, state agency physician Reynaldo Gotanco, M.D., opined
Ms. Carter could lift and carry 25 pounds frequently and 50
pounds occasionally (because heavier lifting caused shortness
of breath), stand/walk/sit six hours in an eight-hour
workday, and occasionally climb ramps, stairs, ladders, ropes
or scaffolds because her asthma caused shortness of breath
when climbing (R. 796-97). In addition, Ms. Carter should
avoid concentrated exposure to irritants such as extreme
heat/cold, wetness, humidity, fumes, odors, dusts, gases, and
poor ventilation (R. 799).
March 25, 2014, Ms. Carter was admitted to the hospital for
two days with acute asthma exacerbation and an upper
respiratory infection (R. 884). She reported being compliant
with her asthma medication, but she developed significant
wheezing and shortness of breath after developing cold
symptoms (R. 885). On April 24, 2014, Dr. Sundaram noted that
Ms. Carter was getting Xolair shots, was compliant with
Advair and had gotten rid of her hamster, but she sometimes
forgot to take Singulair (R. 803). Ms. Carter reported
"breathing fine," and her spirometry had improved
to "moderate obstruction" (R. 804). Her mother
reported Ms. Carter had been smoking marijuana, and Dr.
Sundaram warned that is "very bad for her" because
it has tar in it like unfiltered cigarettes (R. 803). Ms.
Carter was to continue to take high doses of Advair,
Singulair, Pro Air, Xolair, and to avoid animals (R. 804-05).
On May 1, 2014, Ms. Carter reported to Dr. Gordon that she
felt "fine" and denied any recent asthma
exacerbations (R. 1148).
27, 2014, Ms. Carter and her mother testified at a hearing
before a disability officer (R. 187). On July 16, 2014, the
hearing officer issued a written opinion concluding Ms.
Carter was not disabled, and she had the residual functional
capacity ("RFC") to perform medium work with the
limitations specified in Dr. Gotanco's state agency
opinion (R. 186-95).
August 6, 2014, Dr. Sundaram found "really no
improvement in [Ms. Carter's] breathing" (R.
831-32). She had "good days and bad days" and
generally was limited in her ability to really exert herself,
and she continued to have intermitted exposure to animals
(Id.). On October 12, 2014, Ms. Carter was admitted
to the ER for acute asthma exacerbation, including cough,
wheezing, and chest tightness (R. 954). Ms. Carter admitted
she had been exposed to dogs and secondhand smoke, and had
occasionally smoked marijuana and failed to regularly take
her medications (R. 962). The change in weather also
triggered her asthma (Id.). Ms. Carter was
discharged two days later (R. 963). On October 21, 2014, Ms.
Carter had a pulmonary function test done which showed only
moderate obstruction, but she was on Prednisone at the time
January 14, 2015, Dr. Sundaram noted that Ms. Carter's
spirometry was "consistent with moderate obstruction and
significantly] improved from her last spirometry" (when
she was not on Prednisone) (R. 827). He noted that Ms. Carter
was compliant with her Xolair injections and daily doses of
Advair and Singulair, and had "[i]mproved compliance
with regard to smoking and decreasing exposure to
animals" (Id.). On April 8, 2015, Ms. Carter
returned to the ER with acute shortness of breath, chest
tightness and cough (R. 1011). She was treated for an asthma
attack and discharged the next day (R. 1017).
September 2, 2015, Dr. Sundaram noted Ms. Carter had two
no-shows since her last visit in January, which meant she
missed a few weeks of Xolair, and Dr. Sundaram's office
had over an hour of paperwork and phone calls to get her
Xolair preapproved by insurance (R. 823-24). Nevertheless,
Ms. Carter reported that she had been faithfully taking her
inhaled mediations and felt "pretty well," although
she was having a little bit of breathing difficulty with the
change in weather (R. 823). Ms. Carter denied marijuana use,
but asked if there was a basis for her to use medical
marijuana; Dr. Sundaram reiterated that she should not smoke
anything (R. 823, 825). Her spirometry was consistent with a
moderate obstruction (R. 824).
October 16, 2015, Ms. Carter appeared at her hearing before
the ALJ without an attorney (R. 80). The ALJ advised her of
her right to have an attorney and postponed the hearing to
give Ms. Carter additional time to seek representation
December 4, 2015, the hearing resumed, although Ms. Carter
was still not represented by an attorney (R. 32). Ms. Carter
described working at a nursing home as an activity aide from
January 2014 through May 2015; she was on her feet most of
the day but did not lift anything heavy due to her asthma (R.
41-43). That job ended after she had an asthma attack at work
(R. 44). Ms. Carter's mother, Angela Moten, testified
that Ms. Carter cooked, did laundry, and cleaned the house a
little, but not the bathroom because the chemicals trigger
her asthma (R. 60). Ms. Carter also grocery shopped, but
lifting heavy groceries caused her "a little
breathing" trouble and tiredness (R. 57).
vocational expert ("VE") testified that an activity
assistant at a nursing home is normally classified as medium
work, but Ms. Carter performed it at the light level (R. 67).
The ALJ gave the VE a hypothetical involving an individual
who could perform medium work with some environmental and
exertional limitations, and the VE ...