United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
seeks judicial review of the Social Security
Administration's denial of an application for
Supplemental Security Income (SSI) filed on behalf of K.A.W.,
a minor. Tr. 162-71.
social security cases, courts
. . . review the Commissioner's decision for substantial
evidence. Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence
is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a
conclusion.” Id. (quotation omitted). . . .
“We may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the
Commissioner.” Winschel, 631 F.3d at 1178
(quotation and brackets omitted). “If the
Commissioner's decision is supported by substantial
evidence, this Court must affirm, even if the proof
preponderates against it.” Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).
Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d
780, 782 (11th Cir. 2014).
three-step sequential process is used to determine whether a
child is disabled. Parks ex rel. D.P. v. Comm'r of
Soc. Sec., 783 F.3d 847, 850 (11th Cir. 2005);
see 20 C.F.R. § 416.924. At the first step, the
Commissioner must determine whether the claimant is engaging
in substantial gainful activity; if so, the claim is denied.
Id. § 416.924(b). At the second step, the
Commissioner must determine whether the claimant has a severe
impairment or combination of impairments; if the claimant
does not have any severe impairments, the claim is denied.
Id. § 416.924(c). At the third and final step,
the Commissioner must determine whether the child's
impairments meet or equal a “listed” impairment.
Id. § 416.924(d). If the claimant does not have
an impairment that meets, medically equals, or functionally
equals the Listings, he will be found not disabled.
Id. § 416.924(d)(2). The burden of proving
disability lies with the claimant. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
who alleges disability since October 30, 2005, was 10 years
old when the ALJ denied SSI benefits in a written decision.
Tr. 22; 162-71 (protective filing for SSI benefits on October
4, 2013). The ALJ found that K.A.W.'s asthma with
allergic rhinitis and Erb's Palsy with right-sided
brachial plexopathy constituted severe impairments but did
not meet or functionally equal a Listing. Tr. 22-31. Hence,
the ALJ found, she is not disabled. Tr. 31. Plaintiff
contends the ALJ erred by finding K.A.W.'s asthma did not
meet or equal Listing 103.03B (asthma) and by failing to
order a consultative examination. Doc. 11.
B. Attacks (as defined in 3.00C), in spite of prescribed
treatment and requiring physician 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, § 103.03(B). And
“attacks” of asthma are defined as
[P]rolonged symptomatic episodes lasting one or more days
and requiring intensive treatment, such as
intravenous bronchodilator or antibiotic administration or
prolonged inhalational bronchodilator therapy in a hospital,
emergency room or equivalent setting. Hospital admissions are
defined as inpatient hospitalizations for longer than 24
the hearing, plaintiff's counsel argued that K.A.W. met
the Listing, and the ALJ kept the record open for counsel to
submit further briefing so showing. Tr. 40-43. In that
briefing, he listed thirteen “exacerbations” for
consideration as qualifying “attacks” under the
Listing. Tr. 276. They, and a brief description of those
records, are as follows:
• Sept. 27, 2015 - Dr. Geoffry Conner (tr. 526)
o K.A.W. was seen for a routine immunotherapy (allergy)
injection. No. notes on her condition or any ...