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Glover v. Commissioner of Social Security

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

January 6, 2017






         Kelli 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).[1] Following review, and for the reasons stated below, the undersigned recommends the decision of the Commissioner be affirmed.

         Procedural background

         Glover 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).

         Factual Background Hearing Testimony and Personal Background[2]

         Plaintiff 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).

         At the 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).

         Glover 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. (Tr. 57-58).

         Her 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).

         Plaintiff 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).

         Relevant Medical Evidence[3]

         Treating Physicians

         In a 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).

         At a 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[4] Aerosol Inhaler (“as needed for cough or difficulty breathing”), Orapred[5] Solution (“two [teaspoons] by mouth every day for 5 days in case of asthma attack”), and Flovent HFA[6] Aerosol “(two puffs twice a day”). Id.

         Also in 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.

         Later 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.


         A chest x-ray performed at Fairview Hospital in May 2013 during an asthma exacerbation was normal. (Tr. 365); see also Tr. 388.

         At a 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. (Tr. 398-99).

         In 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.

         Plaintiff 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[7] and ordered a sinus CT scan to rule out sinusitis. Id. The CT showed “mild sphenoid sinusitis and rhinitis.” (Tr. 428).

         In 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.

         Plaintiff 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).

         In 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. (Tr. 408-09).

         At a 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).

         Education 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 ...

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