Opinion
Civil Action No. 03-0288 Section "K" (4).
October 27, 2004
ORDER AND REASONS
Before the Court is Plaintiff's Objection to Magistrate Judge Roby's Report and Recommendation. The matter was taken on written briefs, without oral argument. After reviewing the pleadings, memoranda, the record of the proceedings before the Social Security Administration, the Report and Recommendation, and the applicable law, the Court finds the Plaintiff's Objection to contain legitimate assertions that are not countered by substantial evidence in the record. Accordingly, pursuant to 42 U.S.C. § 405(g), the Court remands this matter to the Commissioner of Social Security ("Commissioner") for further factual development.
Plaintiff's Objection to Defendant's Contention that the Plaintiff did not Meet a Respiratory System Listing, (Rec. Doc. No. 10) (hereinafter " Pl.'s Obj.").
Report and Recommendation, (Rec. Doc. No. 9).
(Rec. Doc. No. 10).
Summary of Medical Background
The plaintiff, Donna Riley, is a forty-two year-old woman whose education includes a high school diploma. (Tr. 39, 46). The relevant portion of Ms. Riley's medical history begins in September of 1995 when Dr. Jerry Smith diagnosed Ms. Riley with asthma. (Tr. 95). Between 1995 and 1998, Ms. Riley was prescribed various medications for her condition. However, she continued to seek additional treatment from Dr. Smith at a rate of approximately once every four months.
By 1998, Ms. Riley's condition had worsened. On February 9, 1998, Ms. Riley was admitted to the Meadowcrest Hospital for severe wheezing and shortness of breath. (Tr. 83). In February of 1999, Ms. Riley began to see Dr. Diana Betancourt as her treating physician. (Tr. 165). In September of 1999, Ms. Riley again was hospitalized due to her condition. (Tr. 100). A third hospitalization occurred during late October and early November 2001. (Tr. 182-83). Furthermore, in addition to the hospitalizations mentioned, Mr. Riley has been treated with Solu-Medrol and Depo-Medrol on numerous occasions. See, e.g., (Tr. 167-68).
Procedural History
On May 23 and June 14, 2000, respectively, Ms. Riley filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") with the Social Security Administration. (Tr. 32-35, 185-87). In her applications, Ms. Riley claimed that she had been disabled since November 27, 1996. (Tr. 33, 185).
pursuant to 42 U.S.C. § 410 et seq.
pursuant to 42 U.S.C. § 1381 et seq.
On October 27, 2000, Ms. Riley's requests for DIB and SSI were denied. (Tr. 22). Thereafter, she filed a Request for Hearing before an Administrative Law Judge ("ALJ") on December 7, 2000. (Tr. 28). On November 21, 2001, a hearing was held before an ALJ in New Orleans, Louisiana. (Tr. 189-221). On July 24, 2002, the ALJ issued a decision denying Ms. Riley's SSI and DIB claims. (Tr. 20). Subsequently, the Office of Hearings and Appeals denied Mr. Riley's Request for Review. (Tr. 4-9). Accordingly, the decision became final pursuant to 42 U.S.C. § 405(g).
On January 30, 2003, Ms. Riley filed a Complaint in the Eastern District of Louisiana seeking review of the ALJ's findings. (Rec. Doc. No. 1). Pursuant to 28 U.S.C. § 636(b), the matter was referred to Magistrate Judge Roby for the submission of Proposed Findings and Recommendations. Judge Roby issued a Report and Recommendation, and Ms. Riley has objected thereto. Arguments
(Rec. Doc. No. 9).
(Rec. Doc. No. 10).
Generally, the plaintiff contends that the ALJ erred in denying her claim for benefits because she has been disabled since November 27, 1996. (Tr. 40). More specifically, the plaintiff argues that the ALJ erred by failing to find that she met or equaled the listing level impairment contained in 20 C.F.R. Pt. 404, SubPt. P, App. 1, Listing 3.03B ("Listing 3.03B"). In response, the Commissioner contends that the ALJ's conclusion is based upon substantial evidence and therefore must be affirmed.
Listing 3.03B is met when an individual suffers six asthmatic "attacks" within a period of twelve consecutive months. Listing 3.03B also requires that each alleged attack must (1) last one or more days, and (2) necessitate intensive treatment. In a cursory manner, the ALJ stated that the plaintiff failed to meet the requirements of Listing 3.03B. (Tr. 19) (ALJ Opinion, Finding 4). However, neither the ALJ's findings nor his reasons delineate the basis for this conclusion. Furthermore, after reviewing the record, the Court is not convinced that the record contains substantial evidence to support the ALJ's finding that Listing 3.03B was not met. Accordingly, the Court must remand this matter for more explicit findings on this issue and further factual development.
Standard of Review
The Court faces the unusual position of having two standards of review layered upon one another. First, the Court reviews the Report and Recommendation of the magistrate de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Second, pursuant to 42 U.S.C. § 405(g), judicial review of the Commissioner's decision is limited to two issues: (1) whether substantial evidence exists in the record as a whole to support the Commissioner's decision, and (2) whether the proper legal standards were applied in evaluating the evidence. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Griego v. Sullivan, 940 F.2d 942, 943 (5th Cir. 1991). Ultimately, although two standards exist, only the deferential standard enunciated imposed by 42 U.S.C. § 405(g) constrains the Court in this matter. Accordingly, this deferential standard must be examined in closer detail.
The standard for judicial review is the same for both disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") cases ( 42 U.S.C. §§ 504(g) and 1383(c)(3)). The Court will therefore rely on both types of cases. Strickland v. Harris, 615 F.2d 1103, 1105-06 (5th Cir. 1980).
The Commissioner's final decision must be upheld if it is supported by substantial evidence. 42 U.S.C. § 405(g); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Substantial evidence is more than a mere scintilla, but less than a preponderance; substantial evidence has also been defined as such relevant evidence as a reasonable mind might accept to support a conclusion. Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Jones, 702 F.2d at 620.
In determining whether substantial evidence exists, the court must scrutinize the record and consider whatever fairly detracts from the substantiality of the evidence supporting the ALJ's decision. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). Upon a finding of substantial evidence, the Court may only review whether the ALJ has applied proper legal standards and conducted the proceedings consistently with the statute and regulations. Borney v. Schweiker, 695 F.2d 164, 168 (5th Cir. 1983), cert denied, 103 S.Ct. 3091 (1983). However, procedural perfection in administrative proceedings is not required and procedural improprieties will constitute a basis for remand only if they would cast into doubt the existence of substantial evidence to support the decision. Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988).
This Court may not reweigh the evidence, try the issue de novo, or substitute its judgment for that of the ALJ; it may only examine the record in its entirety to determine whether there is substantial evidence to support the ALJ's decision. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988); Cook v. Heckler, 750 F.2d at 392. Conflicts in evidence should be resolved in administrative proceedings, not in the courts. Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983).
Finally, and most importantly in this matter, an ALJ has a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits. Ripley v. Cater, 67 F.3d 552, 557 (5th Cir. 1995); Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). If the ALJ does not satisfy his duty, his decision is not substantially justified. Ripley, 67 F.3d at 557; Kane, 731 F.2d at 1219. Reversal of his decision, however, is appropriate only if the applicant shows that she was prejudiced. Ripley, 67 F.3d at 557; Kane, 731 F.2d. at 1220. Prejudice can be established by showing that additional evidence would have been produced if the ALJ had fully developed the record, and that the additional evidence might have led to a different decision. Kane, 731 F.2d at 1220.
Pertinent Statutory and Regulatory Framework
To receive disability benefits, a SSI or DIB claimant must be "disabled," as defined by the Social Security Act ("the Act"). See 42 U.S.C. § 423(a)(1)(D); see 42 U.S.C. § 1382(a). Social Security Regulations delineate a five-step "sequential evaluation" for determining whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 420.1520(a)(1). At issue before this court is ALJ's finding regarding the third step of this process, specifically whether the claimant's severe impairment matches or is equivalent to Listing 3.03B of the Social Security Regulations. If the claimant's condition meets the 3.03B listing, the Commissioner will acknowledge the claimant's impairment as conclusively disabling and cease further review of the claim. See 20 C.F.R. § 404.1520(d). In the alternative, should the claimant's ailments fail to match listing 3.03B, the Commissioner will continue to steps four and five of the sequential evaluation. See 20 C.F.R. § 1420.1520(a)(4).
Accordingly, we now turn to the language of the Social Security Regulation listings. Listing 3.03B requires:
Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physical intervention, occurring at least once every 2 months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks.20 C.F.R., Pt. 404, Subpt. P., App. 1, Listing 3.03B. Thus, the language of the listing indicates two distinct elements, namely (1) a severity requirement and (2) a frequency requirement.
See Listing 3.03B ("Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physical intervention").
See Listing 3.03B ("occurring at least once every 2 months or at least six times a year").
The language of Listing 3.03B explains in detail the subtleties of the frequency requirement. Specifically, to satisfy the frequency requirement, the claimant must demonstrate that six "attacks" occurred, "in spite of proscribed treatment," within a period of twelve consecutive months. Id. However, one medical episode does not necessarily constitute a single "attack" for purposes of the listing. Instead, any inpatient hospitalization for greater than twenty-four hours will constitute two "attacks." Id. Thus, in the present case, as few as three asthmatic episodes in a twelve-month period can satisfy the frequency requirement.
The severity requirement of 3.03B demands that each medical episode used to satisfy the frequency requirement rises to the level of an "attack." The term "attack" is defined in Listing 3.03B by reference to Listing 3.00C. Id. Listing 3.00C defines an "attack" as:
[A] prolonged symptomatic episode lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational brochodilator therapy in a hospital, emergency room, or equivalent setting.20 C.F.R. Pt 404, Subpt. P., App. 1, Listing 3.00C (emphasis added). When parsed, the listing displays two elements necessary to determine that a particular medical episode in fact rose to the level of an "attack": (1) the episode must last "one or more days," and (2) the episode must create a necessity for "intensive treatment." Id. Finally, the listing provides an illustrative list of "intensive treatments," which makes clear that hospitalization is not necessary for a particular treatment to be considered "intensive." See id ("in a hospital room . . . or equivalent setting"); see also Martinez-Nater v. Secretary of Health and Human Services, 933 F.2d 76, 79 (1st Cir. 1991).
Ultimately, therefore, Listing 3.03B contains four necessary elements. Namely, a claimant, such as the plaintiff, must show: (1) a twelve-month period, (2) a computation of six "attacks" during that period, (3) a duration of one or more days for each "attack," and (4) intensive treatment necessitated by each "attack." See Listing 3.03B. In the case that the plaintiff's condition meets all of the four elements of Listing 3.03B, the sequential evaluation should have ceased, and the plaintiff must be considered "disabled" for purposes of the Social Security Act. See Bowen v. City of New York, 476 U.S. 467, 471 (1986). However, should facts fail to support any of these four elements, then the plaintiff fails to meet the 3.03B listing, and the ALJ properly proceeded to steps four and five of the sequential evaluation. Id. Discussion
"If a claimant's condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits." Bowen v. City of New York, 476 U.S. at 471. [I]f the claimant's condition does not meet a listed impairment, "the process moves to the fourth step. . . ." Id.
In the context of the standard of review imposed by 42 U.S.C. § 405(g), this Court must determine whether the record contains substantial evidence supporting the ALJ's conclusion that the plaintiff failed to demonstrate one or more of the four elements required by Listing 3.03B.
The plaintiff identifies two twelve-month periods in which she contends that her condition matched the requirements of Listing 3.03B. The first period includes four events that occurred November 26-27, 1997; February 9-12, 1998; May 15, 1998; and August 25, 1998. Pl.'s Obj. at 4 (Rec. Doc. No. 10); see also Pl.'s Mem. at 11 (Rec. Doc. No. 6). The second period includes five events occurring January 24, 2001; May 24, 2001; August 14, 2001; October 4, 2001; and October 28-November 2, 2001. Pl.'s Obj. at 5 (Rec. Doc. No. 10); see also Pl.'s Mem. at 10-11 (Rec. Doc. No. 6). As a preliminary matter, this Court notes that both series of episodes identified by the plaintiff could conceivably satisfy the frequency requirement of Listing 3.03B. Furthermore, no substantial evidence exists to refute the existence of the enumerated episodes. Accordingly, the pertinent question in this matter becomes whether each of the enumerated episodes satisfies the severity requirement of Listing 3.03B.
The frequency requirement of Listing 3.03B requires six "attacks" within a twelve-month period. The hospital visits of Nov. 26-27, 1997; Feb 9-12, 1998; and Oct. 28-Nov. 2, 2001 each may constitute "two attacks." See Listing 3.03B ("Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks."). Thus, the calculation of attacks during the first period might count as follows: two attacks for the Nov. 26-27, 1997 hospitalization, two attacks for the Feb. 9-12, 1998 hospitalization, and one attack exhibited by the May 15, 1998 treatment, and one attack for the August 25, 1998 treatment equaling six total attacks. A similar calculation for the second period would count the Oct. 28-Nov. 2 hospitalization as two attacks and four individual attacks demonstrated by the Jan. 24, 2001; May 24, 2001; Aug. 14, 2001; and Oct. 4, 2001 treatments.
As described supra, the plaintiff must establish two facts to satisfy the severity requirement of Listing 3.03B. Namely, to establish that an "attack" occurred, the plaintiff must show: (1) the existence of "prolonged symptomatic episodes lasting one or more days," which (2) "require intensive treatment." Listing 3.00C.
The first element (duration) can be dispensed with summarily. The Commissioner provides neither evidence nor argument to counter the conclusion that each of the episodes identified by the plaintiff lasted one or more days. Furthermore, though not always explicit, the record suggests that each of the episodes identified, in fact, lasted one or more days. See, e.g., (Tr. 151) (Jan. 24, 2001 treatment with Solu-Medrol after coughing and wheezing for one week); see also (Tr. 168) (Oct. 4, 2001 treatment with Solu-Medrol after coughing and wheezing two weeks). The ALJ did not provide an explicit finding to the contrary nor does the record appear to contain substantial evidence suggesting that any of the plaintiff's episodes, in fact, failed to last one or more days. Thus, the Court can only surmise that the ALJ based its opinion that the plaintiff did not meet Listing 3.03B upon the second element (intensive treatment), rather than upon a failure to establish the requisite duration of each episode.
Admittedly, the record does not contain explicit statements that each episode lasted one or more days. However, the record shows that Solu-Medrol was utilized to treat episodes lasting one or more days, see, e.g, (Tr. 151) (Jan. 24, 2001 episode), and that Solu-Medrol was used on other occasions where the record is silent as to the duration of the episode, see, e.g., (Tr. 174) (May 24, 2001 episode).
Ultimately, however, the duration of each alleged attack also appears be an aspect of the record that is insufficiently developed. On remand, a conclusion, supported by substantial evidence, that any of the plaintiff's episodes failed to last the requisite duration would allow the ALJ to reject the plaintiff's claims.
Intensive treatment is the second element necessary to conclude that an "attack" occurred for purposes of Listing 3.03B. The Commissioner claims that this element fails, because the plaintiff did not require intensive treatment in response to each episode. See Def.'s Reply Mem. at 6-7 (Rec. Doc. No. 7). The plaintiff replies that "intensive treatment" was required by each episode. See Pl.'s Obj. at 7-8 (Rec. Doc. No. 10). Ultimately, therefore, the "intensive treatment" element of the severity analysis poses the dispositive question to the Court. Namely, did each of the episodes referenced by the plaintiff necessitate "intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational brochodilator therapy in a hospital, emergency room, or equivalent setting." Listing 3.00C.
Again, the Court reiterates that a lack of hospitalization is not dispositive as to whether "intensive treatment" has occurred. See Martinez-Nater, 933 F.2d at 97.
Faced with this narrow question, this Court must reluctantly return to the ALJ's duty to fully develop the record. See Riley, 67 F.3d at 557; see also Kane, 731 F.2d at 1220. In cases such as this, where the record remains underdeveloped, the decision of the ALJ is not substantially justified. Ripley, 67 F.3d at 557; Kane, 731 F.2d at 1219. Specifically, the record does not provide substantial evidence as to why injections of Solu-medrol and Depo-medrol, both corticosteriod drugs, do not constitute "intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational brochodilator therapy." Listing 3.00C. Further, the plaintiff has proffered evidence to the contrary, namely:
"Corticosteriods [such as Solu-Medrol and Depo-Medrol] are the most potent anti-inflammatory agents available for treatment of asthma." These medications are not administered lightly, as they may cause strong side-effects including necrosis and muscle weakness or wasting. They are also used for patients who do not respond to bronchodilators.Pl.'s Obj. at 6-7 (Rec. Doc. No. 10) ( quoting Stanley J. Szefler A. Manon Brenner, Corticosteroids in the Treatment of Asthma. 9 Nat'l Jewish Med. Sci. Update ¶¶ 2-5 (1991), available at http://library.nationaljewish.org/MSU/09n5MSU_Corticosteriods.html (last visited April 8, 2004)). While taking no position as to the validity of the medical literature referenced by the plaintiff, this Court merely makes two observations: (1) the possibility exists that treatment with corticosteriods could constitute "intense treatment" for purposes of Listing 3.03B, and (2) the record lacks substantial evidence to the contrary. Thus, in summary, the ALJ's finding that "[c]laimant does not have an impairment or combination of impairments that meets or equals in severity the criteria of any section of the Listing of Impairments" is not supported by substantial evidence. (Tr. 19) ( ALJ Opinion, Finding 4).
Finally, reversal of an ALJ decision is appropriate only if the plaintiff can establish prejudice. Ripley, 67 F.3d at 557. In this matter, the plaintiff has produced evidence suggesting that treatment with corticosteriods should be considered "intensive treatment" which was administered in response to an "attack." See Pl.'s Obj. attached Exhibits 1 and 2 (Rec. Doc. No. 10). No substantial evidence exists to the contrary. Had the ALJ adopted this position, the plaintiff would have met Listing 3.03B. Accordingly, the Commissioner would have been required to deem the plaintiff disabled without further inquiry, and the plaintiff would have received disability benefits. See Bowen v. City of New York, 476 U.S. at 471. In contrast, the ALJ determined that the plaintiff did not meet Listing 3.03B and ultimately concluded that the plaintiff was not disabled. Thus, the "additional evidence might have let to a different decision," and, therefore, the plaintiff was prejudiced. Kane, 731 F.2d at 1220.
Accordingly,
IT IS ORDERED that the decision of the ALJ is REVERSED insofar as this matter is REMANDED to the Commissioner for further development of the record to determine whether Plaintiff's ailments matched or equaled Listing 3.03B.
IT IS FURTHER ORDERED that specific findings be made as to the following issues:
1. Whether treatment with corticosteriods, such as Solu-medrol and Depo-medrol, constitutes "intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational brochodilator therapy." See Listing 3.00C.
2. Whether any other treatment administered to the plaintiff in any setting, satisfied the intensity element of severity requirement enunciated in Listings 3.03B and 3.00C.
3. Whether any of the alleged attacks, identified by the plaintiff, fail to satisfy the duration element of the severity requirement enunciated in Listings 3.03B and 3.00C.
4. Whether during any twelve-month period, either identified by the plaintiff or evident from the record, the plaintiff suffered six "attacks," where hospitalizations exceeding twenty-four hours are counted as two attacks.
5. Finally, if it is determined that the plaintiff has not demonstrated six "attacks" in any twelve-month period, why the episodes alleged to be "attacks" by the plaintiff failed to satisfy the requirements of Listings 3.00C and 3.03B.