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Carter v. Berryhill

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

July 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          SIDNEY I. SCHENKIER United States Magistrate Judge

         The 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).

         Ms. 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.


         In 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).[3]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).

         The 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).

         On 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.[4]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).

         On 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).

         On 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 consistently (Id.).

         On 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).

         On 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).

         On May 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).

         On 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 (R. 829-30).

         On 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).

         On 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).


         On 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 (Id.).

         On 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).

         The 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 ...

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