IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

BERTHA TAYLOR, on behalf of : 

TIERRA TAYLOR, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 05-0560-M

: 

JO ANNE B. BARNHART, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks

judicial review of an adverse social security ruling which denied

a claim for Supplemental Security Income for children

(hereinafter SSI). The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to

conduct all proceedings and order the entry of judgment in

accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.

21). Oral argument was heard on April 24, 2006. Upon

consideration of the administrative record, the memoranda of the

parties, and oral argument, it is ORDERED that the decision of

the Commissioner be AFFIRMED and that this action be DISMISSED.

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. RichardCase 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 1 of 9
2

son v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

Plaintiff was born January 19, 1997. At the time of the

administrative hearing, Taylor was seven years old and was in the

second grade (Doc. 14). In claiming benefits, Plaintiff alleges

disability due to asthma (Doc. 14).

The Plaintiff filed a protective application for SSI on

August 18, 2003 (Tr. 56-58). Benefits were denied following a

hearing by an Administrative Law Judge (ALJ) who determined that

although she had severe impairments, Taylor was not disabled (Tr.

10-20). Plaintiff requested review of the hearing decision (Tr.

9) by the Appeals Council, but it was denied (Tr. 4-7).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Taylor alleges

that: (1) The ALJ did not properly consider the opinions and

conclusions of her treating physician; (2) she meets the

requirements of Listing § 103.03(c)(2) and/or 103.03(B); (3) the

ALJ did not develop a full and fair record; (4) the ALJ did not

consider her poverty in making his decision; and (5) the ALJ was

biased against Plaintiff (Doc. 14). Defendant has responded

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 2 of 9
 1The Eleventh Circuit, in the en banc decision Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), adopted as precedent

decisions of the former Fifth Circuit rendered prior to October 1,

1981.

3

to—and denies—these claims (Doc. 15); Plaintiff replied to the

response (Doc. 20).

Plaintiff's first claim is that the ALJ did not accord

proper legal weight to the opinions, diagnoses and medical

evidence of Plaintiff's physicians. She specifically references

Dr. Izzeddin Kalelmaz (Doc. 14, p. 7). It should be noted that

"although the opinion of an examining physician is generally

entitled to more weight than the opinion of a non-examining

physician, the ALJ is free to reject the opinion of any physician

when the evidence supports a contrary conclusion." Oldham v.

Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981);1 see also 20

C.F.R. § 404.1527 (2005).

The best statement of Dr. Kalelmaz’s opinion is a form he

completed on October 21, 2004 which indicates that he regularly

prescribed a medication cocktail to help Plaintiff deal with her

severe, chronic asthma with attendant respiratory difficulties

(Tr. 46-49). The doctor indicated that asthma limited Taylor’s

physical activities and “very seriously” interfered “with her

ability to initiate, sustain, to complete activities of a

physical nature” (Tr. 47). Kalelmaz referred to four specific

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 3 of 9
 2Those specific dates are April 19, 2003 (Tr. 167), October 27,

2003 (Tr. 157-60), February 2, 2004 (Tr. 154-56), and May 12, 2004

(Tr. 203-05). Those medical records will not be summarized herein.

4

dates2 on which doctoral intervention was required at the Hale

County Hospital Emergency Room (hereinafter ER) to help Plaintiff

with her asthma; he also discounted other specified ER visits as

being unrelated to asthma (Tr. 47-48). The doctor stated that

Taylor “would have difficulty physically playing or interacting

with her peers” because of her asthma and that most of her visits

to the ER were required (Tr. 49). Dr. Kalelmaz’s final comment

was that Plaintiff “had moderate persistent asthma with multiple

breakthroughs” (id.). 

The ALJ found that the record did not support the doctor’s

conclusion that Taylor’s asthma was “very seriously” limiting

(Tr. 18). At least part of the ALJ’s rejection was based on a

teacher assessment form completed by Dana Thomas on January 13,

2004, which stated that Plaintiff had no educational disabilities 

and required no special instruction (Tr. 91-92; see generally Tr.

91-101). Thomas indicated that she had instructed Taylor for six

months, in the first grade, on a daily basis, all-day long, and

that Plaintiff had no problems in acquiring and using

information, attending and completing tasks, interacting and

relating with others, moving about and manipulating objects, and

caring for herself (Tr. 93-99). The teacher noted that Plaintiff

was “a very independent worker[,] usually finished all

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 4 of 9
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assignments with no problem[, and was] a class leader” (Tr. 94). 

Thomas did note, however, that Taylor used a Nebulizer/inhaler on

a regular basis which often caused her to have headaches; the

teacher stated, though, that she had “never witnessed any asthma

problems with her” (Tr. 100). 

The Court finds substantial support for the ALJ’s

conclusions. The medical evidence—even that of Dr. Kalelmaz—does

not support a diagnosis that Taylor is “very seriously” limited

in her physical capabilities. Teacher Thomas’s assessment, based

on her six-month daily interaction, clearly refutes the doctor’s

statement otherwise. This claim is of no merit.

Taylor has also argued that she meets the requirements of

Listing § 103.03B and/or 103.03C(2). 20 C.F.R. Part 404, Subpart

P, Appendix 1, Listing 103 (2005). The Court will address these

separately. 

Listing 103.03B requires that a claimant have asthma attacks

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. Part 404, Subpart P, Appendix 1, Listing 103.03B

(2005). Dr. Kalelmaz’s assessment indicated four different ER

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 5 of 9
 3Plaintiff has pointed to three ER visits and three Clinic visits

as counting for the six times in 2003 (Doc. 14, p. 7). However, as

her treating physician indicated that only two of the ER visits during

2003 were asthma-related, Taylor fails to meet the requirement, even

without considering the Clinic visits.

The Court also notes that Plaintiff points to three days of

inpatient hospitalization during December 2000 (Doc. 14, p. 7). This

period pre-dates Taylor’s asserted date of disability (August 18,

2003), however, so is not available for consideration (see Tr. 56). 

The Court also notes that one of the dates pointed to by Dr. Kalelmaz

as requiring physician intervention (April 19, 2003), also pre-dates

Plaintiff’s stated date of disability.

 4Again, the Court notes that this pre-dates Plaintiff’s stated

date of disability.

6

visits, spanning thirteen months, which required his

intervention; he denied that the other ER visits were asthma

related (see Tr. 47-48). The evidence does not support a finding

that Taylor meets the Listing requirement of six interventions in

a twelve-month period.3

Listing 103.03C(2) requires that a claimant have asthma with

[p]ersistent low-grade wheezing between acute

attacks or absence of extended symptom-free

periods requiring daytime and nocturnal use

of sympathomimetic bronchodilators with . . .

[s]hort courses of corticosteroids that

average more than 5 days per month for at

least 3 months during a 12-month period.

20 C.F.R. Part 404, Subpart P, Appendix 1, Listing 103.03C(2)

(2005). Plaintiff correctly notes that she underwent five-day

corticosteroid treatments in April 20034 and February 2004 (Tr.

14, p. 6), but incorrectly includes the October 27, 2003

treatment as it consisted of a single injection and no additional

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 6 of 9
 5Plaintiff has stated that the “ALJ had a duty to call a medical

expert if he does not understand the issue” (Doc. 14, p. 6) and “[i]t

is reflective of the need for expert testimony in this case that the

ALJ did not know the law, or maybe just did not know how to apply the

law” (Doc. 14, p. 10). The Court finds these remarks misplaced as the

ALJ’s conclusions are supported by substantial evidence.

7

steroid medication (Tr. 157). The ALJ correctly found that

Taylor did not meet the requirements of either Listing.5

In spite of the ALJ’s determination that Plaintiff had

failed to demonstrate that she met the requirements of the

Listing, the ALJ underwent domain analysis to determine if she

equaled the Listings (Tr. 17-19). The Court finds that the ALJ

faithfully provided that analysis and, based on the medial

evidence of record, properly determined that Taylor had, at most,

a marked limitation in the domain of health and physical wellbeing and a less-than-marked limitation in the domain of moving

about and manipulating objects (Tr. 18-19). The medical evidence

and the assessment by Plaintiff’s school teacher support this

conclusion. Plaintiff’s claim otherwise is meritless.

Taylor’s next claim is that the ALJ did not develop a full

and fair record. The Eleventh Circuit Court of Appeals has

required that "a full and fair record" be developed by the

Administrative Law Judge even if the claimant is represented by

counsel. Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.

1981). The Court finds no merit in this claim as Plaintiff has

failed to argue what the ALJ failed to do to develop a full, fair

record (Doc. 14, pp. 9-10). 

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 7 of 9
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Taylor next claims that the ALJ did not consider her poverty

in making his decision. In making this argument, Plaintiff

states that the “ALJ indicated that Taylor should have had more

consistent physician monitoring if her asthma was so bad;”

Plaintiff then pointed out that no more treatment could be

afforded (Doc. 14, p. 8). It is noted that the Eleventh Circuit

Court of Appeals has held that poverty excuses noncompliance with

medical treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th

Cir. 1988). 

The Court notes at the outset that Taylor has failed to cite

the ALJ’s statement that she should have had more consistent

physician monitoring. After scouring the record and failing to

find anything resembling this remark, the Court finds this

argument to be of no merit.

Plaintiff’s final claim is that the ALJ was biased against

her. Taylor points to the following statements he made at the

evidentiary hearing: “‘I am an asthmatic and I have allergies. 

Everything you name there I am very familiar with’” (Doc. 14, p.

8) (citing Tr. 245). 

The Court finds no bias in these statements and finds

nothing in the ALJ’s decision which indicates a bias against

Taylor. This claim is of no merit.

Plaintiff has raised five different arguments in bringing

this action. All are without merit. Upon consideration of the

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 8 of 9
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entire record, the Court finds "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." Perales, 402 U.S. at 401. Therefore, it is ORDERED

that the Secretary's decision be AFFIRMED, see Fortenberry v.

Harris, 612 F.2d 947, 950 (5th Cir. 1980), and that this action

be DISMISSED. Judgment will be entered by separate order.

DONE this 26th day of April, 2006.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 2:05-cv-00560-M Document 23 Filed 04/26/06 Page 9 of 9