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Johnson v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

June 10, 2019

SARA J. JOHNSON, for KLB, Plaintiff,



         Plaintiff, Sara J. Johnson ("Johnson"), proceeding pro se, brought this action on behalf of her minor daughter, KLB, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a decision of Nancy A, Berryhill, the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA"), denying KLB's claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.

         An order of reference assigned this matter to the undersigned. ECF No. 13. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 72, it is hereby recommended that Johnson's motion for summary judgment, ECF No. 15, be DENIED, the Commissioner's motion for summary judgment, ECF No. 17, be GRANTED, and the decision of the Commissioner be AFFIRMED.


         On August 11, 2014, Johnson protectively filed an application for SSI on behalf of her minor daughter, KLB, alleging that KLB became disabled on October 11, 2013, due to asthma with exacerbation, chest pain, allergic rhinitis, and gastroesophageal reflux disorder ("GERD"). R. 22, 25, 110, 163-66, 192.[1]The relevant time period for assessing KLB's conditions begins 12 months before the application date, because this is a child claim under Title XVI, and, to be found disabling, a child's impairments must have lasted or "can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § l382c(a)(3)(C)(i); see also SSA Program Operations Manual System ("POMS") DI 25201.001(D) (Nov. 5, 2007).

         The SSA denied her application initially on February 11, 2015, R. 96, 98, 111-15, and upon reconsideration on June 17, 2015, [2] R. 109, 119-22. Following the state agency's denial of these claims, KLB requested a hearing before an Administrative Law Judge ("ALJ"). R. 124. ALJ Carol Matula held a hearing on February 8, 2017, at which KLB was represented by Linda Jones-Bailey, a non-attorney representative. R. 22, 42-90. KLB and Johnson testified at the hearing. R. 43. On March 28, 2017, the ALJ denied KLB's claim for benefits, finding that she was not disabled from August 11, 2014, through the date of the decision. R. 22-36.

         On April 3, 2018, the Appeals Council denied KLB's request for review of the ALJ's decision. R. 1-6. The Appeals Council noted that Johnson submitted additional medical evidence from: Dr. Cynthia Epstein, dated August 18, 2017, and February 20, 2018; Dr. Thedia Jones Smith, dated May 22, 2017; and Chesapeake Public Schools, dated September 12, 2017. R. 2, 7-15. However, these records did not relate to the period at issue in the ALJ's decision.[3] R, 2. Because the Appeals Council denied the request for review, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. R. 1; see 42 U.S.C. §§ 405(h), 1383(c)(3); 20 C.F.R. § 416.1481.

         Having exhausted all administrative remedies, Johnson timely filed a motion for leave to proceed in forma pauperis with this Court on May 23, 2018, along with her proposed complaint. ECF Nos. 1, 1-1. The Court granted her motion on July 5, 2018, after she submitted a corrected motion, and filed the complaint on the same date. ECF Nos. 2, 3, 4, 5. The pro se complaint asserts that the Commissioner's findings were not supported by substantial evidence in the record, and that the evidence instead established that KLB's asthma was disabling. ECF No. 5 at 3, 5. Specifically, it alleges that KLB's asthma prevented her from attending school on a regular basis, resulted "in her having to be homebound," and "caused her to become very depressed." Id. at 3.

         The Commissioner answered on August 29, 2018. ECF No. 11. In response to the Court's order, ECF No. 14, Johnson filed a letter on October 3, 2018, which the Court construed as a motion for summary judgment, and the Commissioner filed a motion for summary judgment and supporting memorandum on November 8, 2018.[4] ECF Nos. 15-18. As neither party has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision.


         A. Background Information and ALJ Hearing Testimony

         1. Disability Function Reports

         Born in 2002, KLB was 14 years old and attending eighth grade at the time of the ALJ hearing in 2017. R. 46, 48, 163. She was a school age child (between the ages of 6 and 12) in 2013, when her disability allegedly began, and is now an adolescent (between the ages of 12 and 18). See 20 C.F.R. § 416.926a(g)(2). She has never worked. R. 47. She lives with her mother and two older sisters, one age 15 and the other age 26. R. 51-52.

         Johnson completed a "Function Report - Child Age 6 to 12" on October 8, 2014, stating that KLB wears glasses, has no problems hearing or communicating, and her ability to progress in learning was not limited. R. 176-80. Although Johnson marked that KLB's physical abilities were not limited, she also noted that KLB could "walk but get short [of] breath," and could not run, jump rope, or play team sports due to asthma, R. 181-82. She noted that KLB's impairments do not affect her "ability to help . . . herself and cooperate with others in taking care of personal needs," and that KLB "[h]elps around the house" but "gets tired or short of breath" and takes breaks. R. 183. Johnson also completed a supplemental disability report on the same date, noting that KLB was restricted from physical education ("PE") class, required emergency room visits, and missed school days because of her condition. R. 187. Another "Disability Report" completed on the same date lists three asthma medications, an allergy medicine, a nasal spray, a medicine for infections, a medicine for chest pains, and an acid reflux medication, all of which were prescribed by the Children's Hospital of the King's Daughters ("CHKD"). R. 191, 194.

         Johnson completed another disability report on March 13, 2015, stating that KLB's "condition is getting progressively worse in that she is having more asthmatic attacks" and is "more short of breath with the least amount of exertion." R. 199. She noted that KLB "is becoming increasingly depressed due to the fact that she is unable to do simple chores around the house or do things as other kids do," and that she had increased chest pain. R. 199. She explained that KLB is "very slow" and "unable to walk very far without stopping to catch her breath," and she could not be around fumes, cleaning materials, perfume, or nail polish remover. R. 203. She reported that KLB had to stop while bathing "because the exertion causes shortness of breath," had to "sit down to put on her clothes," and wore a "mask when going outside due to pollen." R. 203.

         An August 3, 2015 disability report completed by Johnson reiterated that KLB had shortness of breath and chest pain, even when taking her asthma medication daily, and that she cannot participate in PE class because of her asthma. R. 209-10. A second disability report that month stated that KLB's medical conditions had not changed, but that, since June 2015, she was experiencing new conditions, including "[s]tomach illness and Vitamin D level [that] stays low on top of her shortness of breath[, ] we[a]k lungs[, and] chest pains." R. 212.

         2. ALJ Hearing Testimony

         At the ALJ hearing on February 8, 2017, KLB testified that the school allows her an extra five minutes to move between classes in the one-story school building; she usually only needs two extra minutes, but sometimes takes seven minutes if the class is far away. R. 48-49, 62. She was earning B's to D's "[b]ecause [she is] not in school," and she was allowed home instruction after missing at least three days of school. R. 49-50.

         KLB waits until her 15-year-old sister comes home to do their homework together, but she does not need a reminder to do her homework, and she spends "[a]bout the same" amount of time on homework as her peers, and only needs help with it "[s]ometimes." R. 51-52. After homework, she eats dinner and "get[s] ready for the next day" by taking a bath, putting out her clothes, and studying "if there's a test the next day." R. 52. She cleans up after herself and makes her bed every morning, and does not need reminders to take her bath. R. 55-56. For chores, she does not vacuum because it is "too much walking," and does not dust "because the chemicals get[] to [her]," but she helps by making grocery lists. R. 56-57. She takes medications throughout the day that make her "sleepy," but not to the point where has to "lie down and close [her] eyes." R. 60-61.

         KLB testified that she "can't participate in a lot of physical activities" because of her asthma. R. 53. She helps her PE teacher by keeping scores of other students. R. 59. She does not see her friends on the weekends, but she uses the telephone and social media to talk with them, and instead reads and "hang[s] out" with her family on the weekend. R. 53-54. She cannot "stay with" her family when they go out, because she cannot keep up when they are walking at a normal pace. R. 70. She is depressed about her weight and because she "can't do what normal kids do," although therapy was helping. R. 61. She also feels guilty that she cannot do things with her family, such as go to an amusement park or go outside for her sister's birthday due to her allergy. R. 70-71.

         KLB has been "dealing with" asthma for approximately three years, and it has "[g]otten worse" in that time. R. 64. On average, she goes to the emergency room three or four times per month for asthma, where she receives medication and treatment on a "breather machine." R. 65-66. The maximum number of emergency room visits in a month was four, and she also sees Dr. Smith every month or two. R. 67. She has been hospitalized three times in the previous three years, each for a "couple of days," but only two times were due to asthma. R. 71-72. She uses a dance video program for exercise, but takes a 10-minute break to sit down after dancing for approximately two minutes because she has "trouble breathing." R. 55-56, 58. She has "[c]onstant" four- or five-level pain on a scale often in the center of her chest caused by asthma, and "[w]alking makes it worse." R. 57. She "get[s] out of breath" and cannot climb stairs. R. 58-59.

         Regarding her GERD, KLB testified that she was taking medication, but it was "[n]ot really" under control, and she had to "watch what [she] eat[s]," could not eat spicy foods, and would "direct throw up after" eating eggs.[5] R. 57-58. Her reflux "flares up" "when [her] asthma acts up." R. 68.

         Regarding school, KLB testified that she missed 54 days during the previous school year, and "[a]t least" 20 days "here and there" during the current year. R. 59. She had to have home instruction "three or four" times that year, and teachers put her assignments on the internet. R. 59-60.

         Johnson then testified that KLB's asthma medicine caused her to be tired, and that KLB has a "protocol" for five- to ten-minute nebulizer treatments every three to four hours at home, as well as a nebulizer treatment administered by the school nurse before PE class. R. 75-76, KLB takes a medicine for shortness of breath every eight hours and Albuterol every four hours. R. 77. Johnson maintains control over the medicines and monitors KLB when she takes her medicines to "see if she ... starts breathing better." R. 79.

         Johnson explained that she and her daughters live in a duplex, and KLB needs to take breaks and catch her breath to climb the stairs to get to the living room and her room. R. 81. Johnson stated that KLB was a "smart little girl" who had been an honor roll student, but now "everything is declining" and "[t]hey keep putting her on more and more medicine, higher and higher dose." R. 80. She stated that KLB has been hospitalized three times, but "goes to the emergency room just about every week or every other week" due to her asthma. R. 83. She explained that the doctors offered her steroids to keep at home for KLB, but she "didn't want to take that responsibility" of administering that type of medication because she was not sure when it was needed. R. 84-85.

         B. Medical Evidence

         1. Hospital Admissions

         KLB has been hospitalized three times, all of which occurred after the alleged onset of her disability, and within the year before her application for SSI.

         In October 2013, when KLB was 10 years old, she was hospitalized for the first time at Georgia Children's Hospital for an asthma exacerbation triggered by mold exposure. R. 269, 342-46. She was admitted on October 21, and discharged on October 23, 2013. R. 342, 346. The hospital noted that she "has a history of asthma that is well controlled on daily QVAR and albuterol." R. 342. A pulmonary function test "showed a baseline obstructive disease secondary to asthma and remarkable improvement after albuterol treatment." R. 346.

         On April 29, 2014, KLB was admitted to observation in the Chesapeake General Hospital after being treated in its emergency department for an allergic reaction to IVP dye after a CAT scan for her ongoing chest pain. R. 257-58. The admission notes state that KLB had flushed cheeks and swelling, but no shortness of breath or difficulty breathing. R. 260. The physical examination notes indicate that she had no respiratory distress and had 100 percent oxygen saturation on room air, and she was discharged the following day in stable condition. R. 258.

         On the evening of July 14, 2016, KLB was admitted to CHKD for severe persistent asthma with exacerbation, rash, and hives, which had continued for several days and had not been resolved by clinic visits on July 9, 11, 12, and 14. R. 785. The admission notes state that KLB had "shortness of breath despite outpatient steroid, albuterol, and atrovent treatment," but her respirations were unlabored and she had 100 percent oxygen saturation on room air. R. 786. The etiology of her rash was uncertain, but possibly due to an egg allergy. Id. The doctors planned to continue her on her home medications, except for Qvar because "it does not appear that she has been taking it regularly," and also prescribed Albuterol, Atrovent, and Solumedrol. R. 787.

         The next day, July 15, KLB "felt more comfortable and denied pain" after Albuterol and Atrovent treatment. R. 805. On July 16, the doctors reduced her steroid dose, and resolved her evening episode of chest pain and tachypnea with Albuterol treatment. R. 805, KLB was "deemed stable to return home with follow-up" on July 17, and discharged from the hospital on that date. R. 805, 807.

         2. Emergency Room and Urgent Care Visits

         KLB had nine emergency room or urgent care visits between late 2013 and early 2017, with three visits in 2014, no visits in 2015, and four visits in 2016.

         On December 16, 2013, KLB was treated in the emergency department of Chesapeake General Hospital for an asthma flareup with shortness of breath, audible wheezing, and productive cough, which occurred after she ran out of Albuterol nebulizer solution. R. 264. The physicians noted "[n]o respiratory distress," and that she had 100 percent oxygen saturation on room air. R. 264-65. The doctors administered a nebulizer treatment "with much improvement of her symptoms," and discharged her in stable condition with instructions to "use her albuterol inhaler and nebulizer machine at home as directed as needed for wheezing or difficulty breathing." R. 265.

         On August 5, 2014, KLB was treated in the emergency department of Chesapeake General Hospital for chest tightness and shortness of breath. R, 250. The physicians noted "[n]o respiratory distress," that she had 100 percent oxygen saturation on room air, and she was "able to speak full complete sentences without difficulty." R. 250-51. The physician noted that she "[w]il! provide a nebulizer treatment," and provided KLB oral ibuprofen for pain, but concluded that further chest x-rays were not necessary because "previous imaging studies have been unremarkable" and the EKG to "rule out possible arrhythmia as cause of her chest discomfort... was unremarkable." R. 251. KLB was discharged several hours later on the same date in stable condition, R. 250-52. KLB returned several weeks later, on August 30, 2014, with the same symptoms, and was discharged several hours later after the same treatment. R. 246-47.

         On October 27, 2014, KLB was treated in the CHKD emergency department for chest pain. R. 353, 412. Her "review of systems" at that time reported no shortness of breath, coughing, or wheezing. R. 353. Her pain "resolved" after administration of a "GI cocktail," and she was sent home. R. 355.

         On July 9, 2016, KLB visited the CHKD urgent care clinic for "concerns of intermittent cough and wheezing and hives" after exercising the previous day, and KLB was "complain[ing] of no chest pain but states she feels like she is wheezing and a little short of breath." R. 751-52. She was told to use her Albuterol "aggressive[ly]," every four hours while awake, over the next 24 to 48 hours, and 10-15 minutes before exercise. R. 753. She was given DuoNeb during the visit, which completely resolved her wheezing and chest pain. R. 753. KLB returned for a visit on July 12, 2016, for difficulty breathing, and was told to follow up with her primary care physician. R. 756-57, 766-68.

         On November 9, 2016, KLB visited the CHKD urgent care clinic for asthma, after she had a "cough, chest tightness or wheezing" for three days. R. 726. She was instructed to take Albuterol every four to six hours for five to seven days. R. 727. On November 21, she returned to the clinic for "cough, wheezing and chest tightness since yesterday." R. 818-19. She was instructed to use Albuterol every four to six hours for five to seven days and follow-up with her pediatrician. R. 820.

         On January 28, 2017, KLB was treated in the CHKD emergency department for asthma, and told to follow up with her doctor in two days. R. 854.

         3. Other Doctor Visits and Medical Records

         a. Records from 2012 and 2013

         In 2012 and 2013, the records reflect eight visits to CHKD and Dr. Michelle Curry, with some asthma flare-ups when KLB was not compliant with daily Advair medication, but improvement after Albuterol treatment. R. 375-83. The reports from several visits state that KLB had no new symptoms and was "doing better." R. 377-78.

         b. Records from 2014

         In 2014, KLB had approximately sixteen doctor visits, of which six were follow-up visits with no new concerns, one was an evaluation, and two noted non-compliance with her medications.

         A CHKD visit on February 12, 2014, reported that KLB complained of "weakness and chest hurting in school exacerbated by activity," and "mom reports child[']s SOB [shortness of breath] is severe that school nurse has noticed child gets [shortness of breath] with activity." R. 372. The same report noted that KLB "[h]asn't been really using Advair consistently," and that she was prescribed one puff of Advair twice daily. R. 372, 374, KLB saw Dr. Curry on March 4, 2014, for a sore throat, wheezing, stomach ache, and headaches. R. 477-78, A CHKD follow-up visit on March 10, 2014, reported that KLB's "spirometry numbers [were] lower" because she was "not compliant at this time" with her Advair prescription, and she was given Albuterol the day before for wheezing. R. 370. A follow-up eight days later reported that KLB had fatigue and chest pain "for a while now," and it is "a little hard to breath[e] when there is no chest pain but moreso with chest pain." R. 368.

         On April 14, 2014, KLB saw Dr. Epstein in CHKD's Pediatric Pulmonology Clinic. R. 269-70. Dr. Epstein noted that KLB had a "history of chest pain" since October 2013, and "has been missing significant amount of days of school secondary to crying associated with being in pain," and also could not do activities at home due to pain. R. 269. She noted that KLB was last treated with oral steroids in October 2013, and had no emergency room or hospital visits since that time. R. 269. KLB was 11 years old at the time, and in the 97th percentile for weight and 10thpercentile for height. R. 269. She had 100 percent oxygen saturation on room air, and Albuterol treatment produced a "statistical significant change" in her pulmonary function. R. 270. Dr. Epstein prescribed two puffs of Advair twice daily for her asthma and "continuing albuterol as needed," as well as nasal steroids and Zyrtec for allergic rhinitis and Naprosyn for pain associated with costochondritis. R. 270. A follow-up visit two months later reported that KLB had no new concerns, although she needed Albuterol twice weekly "for wheezing since it got very hot out," and she still had pain in her chest. R. 367.

         On August 7, 2014, KLB saw Dr. Epstein in the CHKD Pediatric Pulmonary Clinic, two days after an emergency room visit. R. 272-73. Dr. Epstein reported that KLB "is trying to exercise and walk, but she is unable to do so secondary to pain," she has "intermittent episodes of coughing and wheezing which has been worse over the past several days associated with her [asthma] flare," and she "has not been on prednisone." R. 272. KLB had 100 percent oxygen saturation on room air, and her pulmonary function testing showed "a mild obstructive pattern with a decline in her flows since her last effort" and "despite her medium strength inhaled steroid therapy." R. 272. Dr. Epstein increased KLB's Advair dosage, but did not change the frequency. R. 273. Dr. Epstein noted that KLB "has a history of chest pain for which the etiology remains unclear." R. 272.

         A CHKD follow-up visit four days later, on August 11, 2014, reported that KLB experienced shortness of breath that morning and "started coughing when she got here," but she was given Albuterol via a nebulizer "after which the lungs were clear." R. 365-66. A follow-up two weeks later reported that KLB complained of chest pain "but no cough, shortness of breath or difficulty breathing," and that she was taking the Advair as prescribed and had not needed Albuterol since her last visit. R. 363.

         KLB saw Dr. Epstein again on September 4, 2014, and reported that, since an emergency room visit several days earlier, KLB's "significant shortness of breath has resolved and she is back to her baseline chest pain and shortness of breath with exertion." R. 274. Dr. Epstein further noted that KLB had 100 percent oxygen saturation on room air, and her pulmonary function testing showed "a significant improvement since her last effort and best lung function she has had;" due to that improvement in pulmonary function, Dr. Epstein saw "no reason to take a course of oral steroids" which had been prescribed, but not administered, after KLB's last emergency room visit. R. 274. KLB "continues to have chest pain daily for which she is not able to participate in activities." R. 274. A CHKD visit on September 24, 2014 reported "[n]o new concerns today," and that KLB was "walking daily" with her mom "and also around the track at school." R. 362.

         On October 8, 2014, KLB saw Dr. Epstein for "followup of ongoing chest pain, severe persistent asthma, and chronic cough." R. 278. Her pulmonary function testing showed "a mild obstructive pattern with an improvement in her flows since her last effort." R. 278. Dr. Epstein noted that KLB"s "physical education remains limited and she seems to do okay with that," and that she was using Albuterol twice daily. R. 278. For asthma, Dr. Epstein prescribed two puffs of Advair twice daily and Albuterol every four hours as needed, and for possible GERD, she prescribed a trial of Prilosec. R. 278.

         On October 29, 2014, Dr. David Darrow evaluated KLB at the request of Dr. Curry. R. 413-14. He reported that KLB had an adenotonsillectomy when she lived in Georgia, and he "performed a flexible fiberoptic assessment of [her] airway" and found "some residual adenoid tissue that was nonobstructive." R. 413. He recorded that KLB was already scheduled for a sleep study for possible apnea and for a polysomnogram regarding possibly obstructive residual lymphoid tissue, and further recommendations could be made once those results were obtained. R. 413. Finally, he observed that KLB has a "history of daytime behavioral issues including poor school performance, inattentiveness and irritability," and that she "gained a substantial amount of weight in the past couple of years." R. 413.

         KLB saw Dr. Epstein on October 30, 2014, three days after visiting the emergency room for severe chest pain. R. 280, 353. Dr. Epstein noted that KLB "has severe persistent asthma with improvement in pulmonary function over time on high dose inhaled steroid therapy," but she "continues to complain of shortness of breath and inability to do simple things like walking" or "keep[ing] up with her family in walking normal." R. 280. Dr. Epstein recommended a trial of Carafate for KLB's chest pain and shortness of breath "possibly related to reflux." R. 281.

         On December 2, 2014, KLB visited Dr. Curry for a cough and low-grade fever, as well as chest and stomach pain. R. 466. KLB had been using Albuterol every four hours for the prior two days. R. 466. Three weeks later, KLB visited Dr. Curry for a follow-up on her asthma and a sinus infection the prior week. R. 464. KLB "was using the Albuterol every 4 hours initially after the last visit but has not needed to use it recently," and she did not have "as much" chest pain. R. 465. Her asthma medications remained the same. R. 465.

         c. Records from 2015

         In 2015, KLB had approximately sixteen doctor visits. Three visits were asthma follow-ups with no cough or wheezing, one was a consultation with a gastroenterologist, one was a bronchoscopy, one was an impedance probe test, one was an EGD test, and three were GERD- related for nausea and vomiting.

         Dr. Michael Konikoff, a gastroenterologist, had a consultation with KLB on January 5, 2015. R. 417. He noted that she complained of daily chest pain, "nausea but infrequent vomiting," and "frequent regurgitation with occasional acid brash." R. 417. He concluded that GERD "could explain" her symptoms, but the lack of improvement on Prilosec and chest pain with palpation "would favor costochondritis or an alternative etiology," so he planned to continue her Carafate medication and perform an upper GI endoscopy ("EGD") to rule out possible causes of her symptoms. R. 418. An EGD on January 19, 2015, revealed "[s]everal small gastric erosions with normal appearing esophageal mucosa." R. 420. KLB also underwent a bronchoscopy with bronchioalveolar lavage on the same date, which revealed clear mucus and produced samples to be analyzed. R. 420-26.

         OnFebruary23, 20l5, KLB had a follow-up visit with Dr. Epstein. R. 428-29. Dr. Epstein noted that KLB had a "significant episode of wheezing about 10 days ago" that was treated with Albuterol, she returned to using Albuterol as needed, and "currently has no coughing, wheezing or shortness of breath." R. 428. She had "good and bad days with her chest pain" and "occasional reflux symptoms." R. 428. She was not participating in PE class, but remained an honor roll student despite missing 25 to 30 days of school. R. 428, On March 4, 2015, KLB visited Dr. Curry and reported that she "has been coughing and her asthma has been flaring up"; she was also "exercising more and has been exercising 5 minutes at a time so she is not short of breath." R. 463. She had recently run out of her medications and refilled them two days before the doctor visit. R. 463. She was told to "[c]ontinue the Advair daily and Albuterol as needed." R. 464.

         On April 6, 2015, KLB saw Dr. Curry for "congestion" and reported that she recently missed a whole week of school due to fever, chest pain and stomach ache, and "was wheezing then as well." R. 461. She "has PE in school but just walks," and her "[s]pirometry [was] good except for low FEF 25-75." R. 461-62. Dr. Curry maintained her asthma medication and ...

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