United States District Court, N.D. Ohio, Eastern Division
PATRICIA A. GAUGHAN JUDGE.
REPORT AND RECOMMENDATION
R. KNEPP II UNITED STATES MAGISTRATE JUDGE.
Glover (“Glover”) filed a Complaint against the
Commissioner of Social Security (“Commissioner”)
on behalf of her daughter, K.G. (“Plaintiff”),
seeking judicial review of the Commissioner's decision to
deny supplemental security income (“SSI”). (Doc.
1). The district court has jurisdiction under 42 U.S.C.
§§ 1383(c) and 405(g). This matter has been
referred to the undersigned for preparation of a report and
recommendation pursuant to Local Rule 72.2. (Non-document
entry dated January 13, 2016). Both parties have filed Briefs
on the Merits. (Docs. 15 & 16). Following review, and for
the reasons stated below, the undersigned recommends the
decision of the Commissioner be affirmed.
filed an application for SSI on behalf of Plaintiff in March
2013 (Tr. 127-32), alleging a disability onset date of July
6, 2002. (Tr. 154). The claims were denied initially and upon
reconsideration. (Tr. 106-08, 114-16). Glover then requested
a hearing before an administrative law judge
(“ALJ”). On May 13, 2015, Plaintiff and Glover,
represented by counsel, appeared and testified before the ALJ
in Cleveland, Ohio. (Tr. 36-79). On June 9, 2015, the ALJ
found Plaintiff not disabled in a written decision. (Tr.
12-29). The Appeals Council denied Plaintiff's request
for review, making the hearing decision the final decision of
the Commissioner. (Tr. 1-6); 20 C.F.R. §§ 404.955,
404.981. Glover filed the instant action on behalf of
Plaintiff on January 13, 2016. (Doc. 1).
Background Hearing Testimony and
was born in July 2002, making her a school-age child at the
time of her application, and an adolescent on the date of the
ALJ's decision. 20 C.F.R. § 416.926a(g)(2); Tr. 15.
She lives with her mother, twin sister, and younger brother
in a two-story single family home. (Tr. 45). She is able to
take care of herself by getting dressed, washing, brushing
her teeth, and eating. (Tr. 55). She empties the dishwasher
and helps watch her little brother. (Tr. 55).
time of the hearing, Plaintiff was in seventh grade and
home-schooled with her twin sister. (Tr. 46). Glover
described her as being in pain every day (Tr. 47-48), and
needing to use an inhaler or nebulizer before she leaves the
house and when she returns (Tr. 48-49). Plaintiff has asthma
attacks both during the day and at night. (Tr. 49). Although
a doctor had recommended exercise, her “asthma got so
much worse after the fact” and the pulmonologist
advised her to stop. (Tr. 56). If she “gets any type of
outdoor activity, indoor activity, she has to be medicated
before and after.” (Tr. 57). If they go to the park,
“she can't get up and can't do - whatever games
that they're playing.” (Tr. 62).
testified she took Plaintiff out of school and began
homeschooling because Plaintiff had asthma attacks every time
she went up or down the stairs at school. (Tr. 56). Glover
stated Plaintiff was so sick that the school would contact
her three to six times per day for pain or an asthma attack.
typical day involves waking up around eight o'clock,
eating breakfast, and getting her medication. (Tr. 61). She
does her school work from the bathroom or her bedroom
“depend[ing] on what the pain level is at that
particular time.” (Tr. 61).
testified at the hearing that her stomach was hurting a ten
on a scale of one to ten. (Tr. 70). She stated that because
of her asthma she “can't run around and play with
[her] little brother.” (Tr. 71). She stated she likes
to play word searches, both on paper and on the internet, as
well as board games. Id. She stated that
“every day, most of the time, I go to sleep and then I
wake up with an asthma attack” and that she has to use
her nebulizer both at day and at night. (Tr. 73). Playing
with her brother, dancing with her sister, and laughing all
cause asthma attacks requiring her to use her inhaler. (Tr.
73-74). Before she was home schooled, she required a
nebulizer treatment before or after gym class. (Tr. 74).
form filled out for the Social Security Administration in
April 2013, Rosemary Robbins, M.D., reported treating
Plaintiff starting in August 2005, and that she had last seen
her the previous month-March 2013. (Tr. 321-23). She listed
symptoms of shortness of breath and coughing, and diagnoses
of mild persistent asthma and food allergies. (Tr. 322). She
noted Plaintiff “does very well on Flovent” and
using an inhaler as needed. (Tr. 323).
visit in April 2013, Dr. Robbins reported “ongoing mild
persistent asthma” and that Plaintiff was
“[c]ontinuing on asthma maintenance medications”
and needed a mask and tubing for her nebulizer. (Tr. 325).
She noted Plaintiff's asthma was under “fair
control” with symptoms more than twice per week, but
less than once per day. (Tr. 326). She reported nighttime
symptoms more than twice per month. Id. She
prescribed ProAir HFA Aerosol Inhaler (“as needed for
cough or difficulty breathing”), Orapred Solution
(“two [teaspoons] by mouth every day for 5 days in case
of asthma attack”), and Flovent HFA Aerosol
“(two puffs twice a day”). Id.
April 2013, Plaintiff was seen in the emergency room with a
suspected acute allergic reaction. (Tr. 381-82). Doctors
noted reported throat itchiness, a rash, and mild shortness
of breath. Id. Notes indicate Plaintiff had a known
allergy “but patient was craving cheesy eggs.”
Id. Glover had given Plaintiff an albuterol
nebulizer treatment to treat the shortness of breath.
Id. Emergency room notes indicate a “known
history of asthma which she treats with daily steroid and
albuterol when necessary.” Id.
the same month, Alton L. Melton, Jr., M.D., reported-in the
context of allergy testing-that Plaintiff's lungs had
“[v]ery good air entry and were completely clear to
auscultation without wheezing, rales, or rhonchi.” (Tr.
394). He also noted:
Regarding her intermittent asthma, it appears that her oral
steroid requirements are excessive for someone not taking a
daily asthma control medication, with 3-5 courses of oral
steroids required per year. Therefore, she was given Flovent
110 mcg 2 puffs twice daily to use on a consistent daily
basis for asthma control. She should use albuterol by inhaler
or nebulizer q 4 hours PRN cough, wheeze, or breathing
difficulty, as well as consistently 15-20 minutes prior to
exercise or cold air exposure.
x-ray performed at Fairview Hospital in May 2013 during an
asthma exacerbation was normal. (Tr. 365); see also
gastrointestinal consult in July 2013, Reinaldo
Garcia-Naviero, M.D., noted Plaintiff had a history of asthma
symptoms, “look[ed] well and in no acute
distress”, and had a normal cardiorespiratory exam.
November 2013, Plaintiff was seen by pediatric pulmonologist
Laura Milgram, M.D., at the Rainbow Babies &
Children's Hospital Pulmonology / Asthma Center. (Tr.
416-17). Dr. Milgram noted Plaintiff had required five-day
prednisone courses five to six times a year. (Tr. 416). She
indicated Plaintiff's asthma was severe and poorly
controlled and that Plaintiff needed albuterol daily. (Tr.
417). On examination, Dr. Milgram noted no dullness to
percussion, wheeze, crackles, or retractions. Id.
Dr. Milgram changed Plaintiff's medications, and advised
her to follow up in two months. Id.
returned to Dr. Milgram in January 2014. (Tr. 414-15). Dr.
Milgram again noted Plaintiff's asthma was severe and the
risk and impairment were both poorly controlled. (Tr. 414).
She noted Plaintiff “got prednisone” on November
18, 2013 and December 5, 2013, and had visited the emergency
room in December 2013. (Id.). She changed
Plaintiff's medication to Symbicort and ordered a
sinus CT scan to rule out sinusitis. Id. The CT
showed “mild sphenoid sinusitis and rhinitis.”
April 2014, Plaintiff followed up with Dr. Milgram, who noted
improvement with Symbicort and home schooling. (Tr. 412).
Plaintiff had nighttime coughing or wheezing less than one
time per week. Id. Her pulmonary function test was
normal. Id. Plaintiff's asthma was noted be
severe, but both risk and impairment were well-controlled.
Id. Dr. Milgram instructed Plaintiff to continue her
medications and follow up in four months. Id.
again saw with Dr. Milgram in August 2014. (Tr. 410). Dr.
Milgram noted Plaintiff had symptoms when laughing, or
playing with her sister. Id. She was noted to be
“overall much improved, but still has regular
[symptoms].” Id. Again, her asthma was
indicated to be severe, with risk well-controlled and
impairment not well-controlled. Id. She had
nighttime coughing or wheezing one to two times per week, and
used her albuterol one to two times per week. Id.
Dr. Milgram advised Plaintiff to continue Symbicort, and to
use albuterol before exercise and as needed. Id.
Plaintiff's spirometry test was normal. (Tr. 421).
December 2014, Plaintiff returned to Dr. Milgram. (Tr.
404-09). Dr. Milgram noted Plaintiff “did have
exacerbation at the end of September that required course of
prednisone, but otherwise asthma seems to be under improved
control since last visit, but still using pro air inhaler 1-2
times a day and occasionally waking up at night still,
although ‘way better' than it was in past.”
(Tr. 404). Dr. Milgram prescribed a course of prednisone to
be used for three to five days “as directed for asthma
exacerbation” and advised her to continue Symbicort.
gastrointestinal follow-up in December 2014, Plaintiff had no
cough, wheezing, or shortness of breath (Tr. 431), and her
lungs were clear to auscultation (Tr. 434).
records note Plaintiff's asthma and its limitations on
her ability to participate in recess and physical education,
see Tr. 140-141, 243, and contain instructions for