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Taylor v. Colvin

United States District Court, Third Circuit

October 21, 2013

YVEYA TAYLOR, on behalf of D.M.G., a minor Plaintiff,


Mary Pat Thynge, United States Magistrate Judge.


On November 2, 2012, plaintiff, Yveya Taylor (“plaintiff”), filed this action on behalf of D.M.G., a minor, against defendant Carolyn W. Colvin, Acting Commissioner of Social Security (“defendant”).[1] Plaintiff seeks judicial review, pursuant to 42 U.S.C. § 405(g), of a decision by defendant denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act.

Presently before the court are the parties’ cross-motions for summary judgment, in which plaintiff seeks to either reverse the Commissioner’s decision and remand solely for the calculation of benefits, or remand for additional proceedings. Defendant asks the court to affirm the decision and to enter judgment in her favor. For the reasons set forth below, the court recommends plaintiff’s motion for summary judgement be granted in part, defendant’s motion for summary judgement be denied, and this case be remanded for additional proceedings.


A. Procedural History

On September 8, 2009, plaintiff applied for supplemental security income on behalf of the minor plaintiff, claiming an alleged disability of asthma with an onset date of October 28, 2000.[2] Her claim was initially denied on January 22, 2010, and upon reconsideration on April 21, 2010. Plaintiff subsequently filed a written request for a hearing on June 24, 2010. On March 30, 2011, a video hearing was conducted before Administrative Law Judge (“ALJ”) Barbara Powell.[3] Both minor plaintiff and plaintiff, represented by counsel, appeared and testified, and ALJ Powell presided over the hearing.

On April 26, 2011, the ALJ denied plaintiff’s claims, finding minor plaintiff was not considered disabled under section 1614(a)(3)(C) of the Social Security Act.[4] After considering the record, the ALJ determined minor plaintiff has impairments that are severe within the meaning of the regulations, but does not have an impairment or combination of impairments severe enough to meet or medically equal one listed in either 20 CFR 404. 103.00 (respiratory) or 404. 102.00 (special senses).[5]

Plaintiff filed a request for review of that decision, which was denied by the Appeals Council on September 6, 2012.[6] Consequently, the April 26, 2011 decision by the ALJ is the final decision of the Commissioner. Seeking judicial review of this decision, plaintiff moved for summary judgment in the District Court of Delaware on March 18, 2013.[7] Defendant filed a cross-motion for summary judgment.[8]

B. Medical Record History

Minor plaintiff was born on October 28, 2000.[9] Her mother and treating physicians claim she has suffered from asthma from at least the age of one.[10] Ilene Bourdreaux, M.D., is minor plaintiff’s primary physician, and the record demonstrates Dr. Bourdreaux prescribed medication for the treatment of asthma, such as an Albuterol nebulizer, Singulair, and oral steroids, from December 2004 to September 2010.[11] On average, minor plaintiff sees Dr. Bourdreaux about twice a year.[12]

Minor plaintiff was hospitalized for acute asthma exacerbation in October 2007, where she was treated with oral steroids and Abuterol.[13] In February 2008, she returned to the hospital, where she was diagnosed with pneumonia and asthma exacerbation and prescribed Albuterol.[14] She returned to the emergency room again in March and April 2008 for acute asthma exacerbation, and received Albuterol and oral steroids.[15] In November 2008, minor plaintiff was hospitalized for six days due to her asthma, during which she was prescribed a course of oral steroids, educated on controlling her asthma, and discharged on Albuterol, Singulair, and Prednisone.[16]

In January 2009, minor plaintiff began treating with Dr. Aaron S. Chidekel, Chief of Pediatric Pulmonology at the Nemours Children’s Hospital.[17] Dr. Chidekel’s initial impression of her condition was mild persistent asthma.[18] His initial examination delved into minor plaintiff’s home and social life, which indicated that she lived with two dogs, her parents were smokers, and, despite a shortness of breath and wheezing, she was able to keep up with other members of her karate class.[19] Dr. Chidekel performed spirometry which revealed normal air flow and volume, but did not test her response to bronchodilators.[20] Dr. Chidekel revised minor plaintiff’s asthma treatment by prescribing Prednisone in addition to the nebulizer treatments that she was previously using.[21] Dr. Chidekel saw her again in March 2009, and reported her respiratory status as “fairly well, ” and her moderate persistent asthma under good control.[22] He did not perform spirometry at that time.[23] She did not see Dr. Chidekel again until March 2010.[24]

Minor plaintiff continued to do reasonably well, though Dr. Boudreaux increased her Prednisone in October 2009.[25] In December 2009, minor plaintiff sought emergency room treatment for asthma exacerbation and was discharged with prescriptions for Prednisone and an Albuterol nebulizer.[26] In a February 2010 examination, Dr. Boudreaux noted minor plaintiff was using her nebulizer almost every day, prescribed Prednisone, and advised her to see Dr. Chidekel.[27]

Dr. Chidekel saw minor plaintiff in March 2010 and noted the following complaints: she was not doing well, had experienced ten unplanned emergency room or physician visits since their last meeting, and wheezed frequently, along with other symptoms.[28] Dr. Chidekel performed spirometry, which revealed normal lung function and severe obstructive pulmonary changes reversible with bronchodilators.[29] Dr. Chidekel further reported minor plaintiff as healthy, alert, and without any wheezing at the time of his examination, however his impression was her asthma had worsened to severe and persistent, and was under poor control.[30] He prescribed a course of Prednisone.[31]

Dr. Chidekel examined minor plaintiff four months later, on July 26, 2010, and diagnosed asthma with exacerbation.[32] Although his notes indicated he lasted examined her in May 2010, there is no evidence of that visit in the record.[33] His impression was severe persistent asthma under poor control during the previous week despite an aggressive sick plan and five days of oral steroids at inadequate dosing.[34]He further noted audible wheezing, but did not perform spirometry.[35] Dr. Chidekel prescribed Singulair, Advair, Prednisone, and an Albuterol nebulizer.[36]

Minor plaintiff followed up with Dr. Chidekel in September 2010. At that time, his diagnosis was “mild persistent asthma, ” however his finding, both prior to and following this examination, was severe and persistent asthma.[37] During this examination, Dr. Chidekel observed wheezing, did not perform spirometry, [38] and continued the same medication protocol.[39]

Minor plaintiff visited Dr. Chidekel a month later in October 2010.[40] His diagnosis was severe, persistent asthma.[41] During this examination, no wheezing was noted.[42]Dr. Chidekel performed spirometry, which revealed moderate obstructive pulmonary changes reversible with bronchodilators. His impression was severe persistent asthma under fair control.[43] A week following this appointment, minor plaintiff was treated at the emergency room for asthma with acute exacerbation.[44] The emergency room records noted her medications of Advair, Singulair, and Albuterol, [45] and documented the presence of wheezing.[46] During a follow-up visit three days later, Dr. Chidekel observed wheezing, and instructed her to use the nebulizer more frequently and continue taking Advair and Prednisone as previously prescribed.[47]

Minor plaintiff returned again in November 2010 to Nemours Hospital for a tonsillitis examination and was not seen by Dr. Chidekel.[48] Minor plaintiff had a tonsillectomy in December 2010.[49] Her last ...

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