Harris v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RYANNE HARRIS, Case No. 1:18 CV 2142

Plaintiff,

v. Magistrate Judge James R. Knepp, II

COMMISSIONER OF SOCIAL SECURITY

ADMINISTRATION,

Defendant. MEMORANDUM OPINION AND ORDER

INTRODUCTION

Plaintiff Ryanne Harris (“Plaintiff”) filed a Complaint against the Commissioner of Social

Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny child’s

insurance benefits (“CIB”) and supplemental security income (“SSI”). (Doc. 1). The district court

has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned’s

exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 11). For

the reasons stated below, the undersigned affirms the decision of the Commissioner.

PROCEDURAL BACKGROUND

Plaintiff filed for CIB and SSI in May 2015, alleging a disability onset date of September

1, 2006. (Tr. 265). Her claims were denied initially and upon reconsideration. (Tr. 199-204, 207-

11). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 212-13).

Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the

ALJ on April 5, 2017. (Tr. 109-45). On August 28, 2017, the ALJ found Plaintiff not disabled in

a written decision. (Tr. 96-103). The Appeals Council denied Plaintiff’s request for review, making

the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 404.955,

404.981, 416.1455, 416.1481. Plaintiff timely filed the instant action on September 18, 2018. (Doc.

1).

FACTUAL BACKGROUND

Personal Background and Testimony

Born in 1996, Plaintiff was nine years old on her alleged onset date, and twenty at the time

of the ALJ hearing. See Tr. 115, 265. At the time of the hearing, Plaintiff lived with her mother

and her younger sister. (Tr. 114-15). Plaintiff was a high school graduate, and attended college full

time. (Tr. 115-16). She took twelve credit hours of classes, with four hours of classes per week on

campus (three classes) and one online class. (Tr. 118). The online class took Plaintiff

approximately three to four hours per week; in addition to classroom time, she spent three to four

hours per week on each of her other three classes. (Tr. 119).

Plaintiff believed she was unable to work due to her chronic lupus and interstitial lung

disease, specifically citing swelling in her fingers, wrists, knees, and feet, and shortness of breath

with exertion or stress. (Tr. 120). Plaintiff experienced shortness of breath “almost every day . . .

[e]ither just from stress or just walking.” (Tr. 121). Physicians treated Plaintiff’s lung disease with

an immunosuppressant drug (Cellcept), which she testified prevented worsening, but she “still

ha[d] symptoms.” Id. Plaintiff explained that her symptoms arose when she “tr[ied] to do too

much” or “because [she] tr[ied] to do what a normal person can do.” (Tr. 122). Plaintiff explained

that she could walk “about five minutes” on a flat surface, shorter on an incline. (Tr. 136-37). She

also experienced shortness of breath due to stress while at rest. (Tr. 137).

Plaintiff’s lupus caused swelling, more often in her fingers and hands than her knees and

feet. (Tr. 122). She had pain and swelling in her hands and fingers almost daily, but “it also varies”.

(Tr. 123). The swelling made it more difficult to use a computer keyboard, button a blouse, or tie

shoelaces. (Tr. 135-36). Walking caused pain in her feet. (Tr. 123). Plaintiff took Prednisone for

lupus, and underwent blood draws every three months to check her sedimentation levels to monitor

inflammation. Id. Due to Raynaud’s syndrome, Plaintiff’s fingers and toes turned white or purple

when cold or when she was stressed. (Tr. 123-24). Plaintiff’s medications made her tired. (Tr.

138).

Plaintiff testified her mother did the grocery shopping, cooking, laundry, and housework;

she was not responsible for any household chores. (Tr. 124-25). She spent five to six hours per

week on her computer, primarily for schoolwork; she had social media, but did not spend much

time on it because it was “stressful to look at the computer”. (Tr. 125-26). Plaintiff spent most of

her day sleeping, resting, or doing homework. (Tr. 126) (“I’m so tired just with school alone.”).

She sometimes had friends come over and watch television. (Tr. 127).

Plaintiff’s college provided accommodations for her conditions, including a close parking

spot and additional time to make up assignments due to illness. (Tr. 128). At the time of the

hearing, Plaintiff did not have to walk between classes because all of her were in the same location.

(Tr. 129). Plaintiff previously had courses in different locations and “[i]t was problematic and [she]

had to drive from one building to the next[.]” Id. Plaintiff did not believe she could take all four

classes on campus. (Tr. 134-35).

Plaintiff testified that her last “severe flare” was during her freshman year of high school.

(Tr. 130). She had trouble breathing and spent a week or two in the hospital due to lung

inflammation. (Tr. 131). She noted that her doctor said she had to slow down and eliminate

extracurricular activities, including housework. (Tr. 131-32). Plaintiff’s physician told her she

could experience such a flare again at any time and that she should not work. (Tr. 132). Plaintiff

experienced less severe flares “almost every week”. (Tr. 133). A lupus flare could last “for a couple

of days” and a lung disease flare caused shortness of breath for “up to an hour or two.” (Tr. 133-

34). During lung exacerbations, Plaintiff had to sit or lie down. (Tr. 134).

Relevant Medical Evidence

According to treating rheumatologist Elizabeth B. Brooks, M.D., in 2006, Plaintiff

developed swelling in her fingers and feet, followed by a fever and rash. (Tr. 470). She was

ultimately diagnosed with connective tissue disease. Id. Shortly thereafter, Plaintiff had an

inpatient hospital stay due to weakness and joint contractures; she was treated with steroids. Id. In

2007, a chest CT revealed interstitial changes and lymphadenopathy. Id. Later in 2007, a lung

biopsy revealed interstitial lung disease with fibrosis and alveolar hemorrhage. (Tr. 471). Plaintiff

continued daily oral steroids. Id.

An August 2011 chest CT showed “multiple areas of irregular linear hyperattenuation areas

with ground glass opacification and bronchiectasis in peripheral and subpleural distribution”,

which was noted to be consistent with “nonspecific interstitial pneumonia which are often seen in

connective tissue disorders.” (Tr. 368). In March 2012, Plaintiff was hospitalized due to shortness

of breath and found to have severe thrombocytopenia. See Tr. 376, 471. In August 2012, a chest

CT revealed “minimal interval increase in irregular linear hyperattenuation, ground glass

opacification, and bronchiectasis in peripheral and subpleural distributions throughout bilateral

lungs, consistent with progressive interstitial lung disease.” (Tr. 368). A treatment note states

Plaintiff “received Cytoxan until about 2 years ago, and received monthly Pentamidine aerosols.”

(Tr. 383). At a September 2012 visit, Plaintiff denied acute shortness of breath with activity

“though admit[ted] her activity tolerance overall continued to be quite diminished.” (Tr. 376).

An August 2013 chest CT revealed “[n]o significant change” since the August 2012 CT

scan, noting “[b]asilar predominant peripheral reticular interstitial opacities and groundglass

opacities compatible with interstitial lung disease.” (Tr. 389).

Plaintiff called her pulmonologist in November 2013 to describe symptoms of cough

lasting ten days; he noted a probable respiratory infection and instructed Plaintiff to schedule an

office visit, noting Plaintiff would likely need instruction regarding “use of Albuterol MDI and

either Acapella or Flutter.” (Tr. 374). At the visit, Plaintiff reported a cough lasting about ten days,

but prior to that, no significant change in shortness of breath, cough, or activity limitation. (Tr.

369-70). She had a slight improvement in her cough over the prior five days. (Tr. 370). A chest x-

ray revealed “interstitial reticular changes noted involving the mid to lower lungs with peripheral

predominance”; these findings were “not definitely increased in comparison on the prior study and

compatible with the prior seen interstitial changes of lungs.” (Tr. 368). The physician noted

Plaintiff’s interstitial lung disease had “moderate to severe restrictive defect without significant

change post bronchodilator” and that she had a “[w]orse exam with bibasilar crackles, recurrent

cough and decrease in FEB1 and FVC compared to prior exam/studies.” (Tr. 372). He also noted

the “[a]cute decrease in PFT may relate to superimposed viral respiratory infection – no current

fever or [chest x-ray] evidence of acute changes or infiltrates.” Id. At a subsequent visit that month,

Plaintiff’s pulmonologist diagnosed lupus and interstitial lung disease, noting a “[m]oderate

restrictive defect, but improved compared to last visit”; he also noted a “[r]ecent CT demonstrates

persistence of linear hyperattenuation, ground glass opacification and bronchiectasis in peripheral

and subpleural distributions through both lungs, consistent with progressive ILD.” (Tr. 368-69).

The physician also prescribed an Acapella mucus clearing device. (Tr. 373).

In July 2014, Plaintiff was prescribed an Albuterol inhaler. See Tr. 503. In August 2014, a

chest CT showed “[b]ibasilar predominant reticular and groundglass opacities not significantly

changed since 8/16/13 consistent with known interstitial lung disease.” (Tr. 388).

In November 2014, Plaintiff saw pulmonologist Laura Milgram, M.D. (Tr. 444-47). Dr.

Milgram noted she last saw Plaintiff in April of that year with a dry cough and “[s]ince then, she

has been asymptomatic.” (Tr. 444). She also noted Plaintiff’s lupus “ha[d] been good; no flares”

and she had “[n]o need for any breathing treatments since last visit.” Id.

At an April 2015 visit with her rheumatologist, Elizabeth Brooks, M.D., Plaintiff “ha[d]

been doing well and ha[d] been feeling well.” (Tr. 472). She had no recent infections and her

review of systems was negative. Id. Dr. Brooks noted she was “doing well symptomatically”

though she “continue[d] to have marke[d] elevation of her sedimentation rate.” (Tr. 478). Dr.

Brooks ordered lab work, continued Plaintiff’s medications, and instructed her to follow up in

three months. Id.

At a May 2015 visit with Dr. Milgram, Plaintiff reported a cold a few weeks prior, which

resolved, but her mother noted after her pulmonary function testing, her cough returned; she denied

shortness of breath. (Tr. 439). It was noted that “[s]ince last visit on 11/4/14” Plaintiff had been

“doing very well”. Id. The physician noted: “Mom is very concerned that with the stress of nursing

school, having to work during college may cause stress that could potentially cause exacerbations.

Mom is hoping that if [Plaintiff] qualifies for SSI, it will allow her to not have to work while in

school.” Id. Plaintiff’s pulmonary examination was normal. (Tr. 442). A spirometry test from this

visit showed reduced FVC and FEV1, and the physician noted “[t]here is no significant change in

pulmonary function since the last test on 11/3/14 when the FEV1 was 52% of predicted”; the

results were “suggestive of restrictive disease.” (Tr. 452). Dr. Brooks continued Plaintiff’s

medications, and explained she could use her inhaler more regularly if her cough persisted. (Tr.

443). She noted that Plaintiff was “currently doing well” and that she “[a]gree[d] with plan for

applying for SSI to potentially alleviate the stress of attending nursing school and trying to work

with chronic illness.” Id.

In July 2015, Plaintiff returned to Dr. Brooks. (Tr. 531-35). She reported “feeling well

since her last visit” and denied recent illness. (Tr. 531). Plaintiff was concerned about her ability

to travel between classes and requested a letter “with her diagnosis and limitations with regard to

walking distances especially in colder weather while carrying her books”, noting disability services

would provide her a golf cart for transportation if she had such a letter. Id. She also reported she

was “not using sunscreen on a daily basis and . . . that she avoids being outdoor during the

daytime.” Id. Dr. Brooks agreed to provide the letter, noting Plaintiff “ha[d] become more

concerned about her disabilities related to her endurance and subsequent inability to go to and from

class as rapidly as will be expected.” (Tr. 535). Plaintiff’s review of systems was negative

(including denying cough, shortness of breath, or wheezing) (Tr. 532), and her physical

examination was normal (Tr. 533).

In August 2015, Plaintiff underwent a chest CT which was “not significantly changed”

compared to the August 2014 study. (Tr. 501). A spirometry study that same month showed

Plaintiff’s diffusing capacity of the lung (“DLCO”) to be 61 percent of reference. (Tr. 514). This

was noted to reflect a “[m]ild reduction in DLCO.” Id.

Plaintiff returned to Dr. Brooks in October 2015, reporting an upper arm rash “resolved

with weather change and less exposure to the sun” and swelling and redness in her right index

finger which “resolved over the weekend.” (Tr. 522). Plaintiff said school was going well. Id. She

denied additional joint concerns, and recent illness. Id. Plaintiff’s review of systems was negative,

and her physical examination was normal but for an upper extremity rash. (Tr. 522-24). Dr. Brooks

noted Plaintiff “denie[d] symptoms to suggest active disease although she has continued to have

elevation of her sedimentation rate.” (Tr. 526). Dr. Brooks instructed Plaintiff to continue

medications, take vitamin D to address a deficiency, undergo lab work, and follow up in January

before returning to school. Id.

In January 2016, Plaintiff returned to Dr. Milgram, and was “[d]oing well since last visit”.

(Tr. 587); see also Tr. 591 (“is currently doing well”). She had “no problems” since her last visit,

and no need for rescue albuterol. (Tr. 587). Dr. Milgram noted Plaintiff had a lupus flare in her

fingers. (Tr. 588). She also had “some” exercise limitation and had not missed any days of school.

Id. Her physical examination was normal. (Tr. 590). A spirometry study again showed reduced

FVC and FEV1, but no significant change in pulmonary function since the previous test. (Tr. 592-

93).

Plaintiff saw Dr. Brooks the following month. (Tr. 624-28). Plaintiff reported doing well

and denied recent infections. (Tr. 624). Her review of systems was negative. Id. (“[She] denied

fatigue although her mother has stated she is fatigued when she gets home from college. She is

napping one day per week.”). Plaintiff’s physical examination was normal. (Tr. 626).

In April 2016, Plaintiff saw Dr. Brooks for a cough and nasal congestion. (Tr. 615). Dr.

Brooks noted no joint swelling or synovitis on physical examination, and an otherwise normal

physical examination. (Tr. 617). She believed Plaintiff’s symptoms to be viral. (Tr. 621).

Plaintiff saw Dr. Brooks again the following month, at which time she denied joint

concerns. (Tr. 608). She also reported that her medication compliance had improved, and that but

for the cold in April, she had been healthy. Id. Plaintiff completed her college year and “plan[ned]

to volunteer at Ahuja as a nonclinical nursing assistant.” Id. On examination, Dr. Brooks noted a

rash on Plaintiff’s right hand, but otherwise normal findings. (Tr. 610). Dr. Brooks noted “some

of her labs demonstrate improvement; however, her ESR is much worse.” (Tr. 613). Dr. Brooks

noted she “had a long discussion with [Plaintiff] again today regarding the need for strict

compliance with her medications and follow up.” Id.

In September 2016, Plaintiff reported “that she ha[d] been feeling well”. (Tr. 600). Dr.

Brooks noted Plaintiff was “continuing to have issues with forgetting to take her evening

medications.” Id. Her review of systems was negative (Tr. 600) and her physical examination was

normal (Tr. 602). Dr. Brooks noted she was “feeling well” and “ha[d] continued to have elevated

inflammatory markers but is not taking all doses of Cellcept due to issues remembering her evening

medication dose.” (Tr. 606).

In January 2017, Plaintiff saw Dr. Brooks for follow up. (Tr. 597-99). Dr. Brooks renewed

Plaintiff’s medications and instructed Plaintiff to follow up in three months. (Tr. 599). Dr. Brooks

also instructed Plaintiff to follow up with Dr. Milgram, as she was last seen a year prior. Id.

At a February 2017 visit, Plaintiff saw a pulmonologist, and reported that since November

2013 “she states that she feels she has been doing well from a respiratory standpoint.” (Tr. 638).

She reported “no significant interval pneumonias or [upper respiratory infection] episodes.” Id.

Plaintiff reported good activity tolerance with “walking to and from class” as her primary activity.

Id. She denied “specific limitation of any desired activity”. Id. On review of systems, Plaintiff

noted marked improvement in cough, shortness of breath, and exercise intolerance over the prior

two weeks. Id. The physician opined that Plaintiff’s interstitial lung disease resulted in “[m]oderate

restrictive defect, but improved compared to last visit on Nov. 6th”, “[n]o crackles or wheezing on

chest exam today, no cough during visit”, and “[i]nterval improvement in FEV1 and FVC.” (Tr.

642).

Opinion Evidence

In June 2015, Dr. Brooks completed a medical assessment form and attached a letter. (Tr.

466-67, 470-71. She noted Plaintiff’s diagnoses of lupus/mixed connective tissue disease, and

interstitial lung disease, and that she had treated Plaintiff since January 2006. (Tr. 466). She opined

that “due to her disease” Plaintiff would “be unable to work and attend college simultaneously.”

(Tr. 467). This was so because she required enough sleep and rest “so she can participate fully in

class/homework.” Id. Dr. Brooks noted Plaintiff “plans to become a nurse and will be unable to do

so if her disease flares secondary to inability to obtain adequate rest and increased stress of having

to support herself through college and well as perform in college at a level that will be required to

enter the nursing program.” Id. In her letter, Dr. Brooks detailed Plaintiff’s treatment history and

noted she “continue[d] to have significant elevation of her sedimentation rate” and “chronic

interstitial lung disease with abnormal pulmonary function tests that reveal moderate restriction

with a severe diffusion defect.” (Tr. 470-71). She noted that Plaintiff “would ultimately like to be

functioning member of society with a full time nursing position” but that “[i[f she is unable to get

through college, she will become dependent upon the disability program long term.” (Tr. 471). In

conclusion, she explained:

Ryanne is a patient who is deserving of disability at this time due to her inability to

hold down a job while trying to get through college. Her disease is at risk of a

significant flare if she is forced to do so and she would ultimately be unable to

complete college if she should have a serious flare. She has had life threatening

flares previously and is at risk of doing so in the future if she is not given the

opportunity to care for herself correctly.

Id.

In August 2015, State agency physician Anton Freihofner, M.D., reviewed Plaintiff’s

records and offered an opinion about her functional abilities. (Tr. 167-70). He opined Plaintiff

could occasionally lift or carry twenty pounds, and frequently carry ten; she could stand and or

walk for six hours in an eight-hour workday, and sit for the same. (Tr. 167). He opined she should

avoid concentrated exposure to extreme temperatures and pulmonary irritants. (Tr. 167-68).

In November 2015, State agency physician Rannie Amiri reviewed Plaintiff’s records and

affirmed Dr. Freihofner’s opinion regarding Plaintiff’s ability to lift, carry, sit, stand, or walk, but

added the following postural limitations: occasionally crawling and climbing ramps, stairs,

ladders, ropes, or scaffolds; frequently stooping, kneeling, or crouching. (Tr. 181-82). He also

opined Plaintiff should avoid concentrated exposure to pulmonary irritants, but found her

unlimited in her ability to be exposed to extreme temperatures. (Tr. 182)

In January 2017, Dr. Brooks wrote a “to whom it may concern” letter to Plaintiff’s college.

(Tr. 631). It stated:

Ryanne has systemic lupus erythematosus/mixed connective tissue disease with

interstitial lung disease. Because of her lung disease, her endurance is reduced. If

she has to go long distances between classes, she will have difficulty getting to class

on time. She has Raynaud’s phenomenon which can cause decreased blood to the

fingers and toes with cold exposure. She may also find that her joints are more

painful during the cold weather months. She would benefit from access to a golf

cart to go between classes for the above reasons. Ryanne is on medications that

suppress her immune system and put her at increased risk of infections, especially

during the winter. If she becomes ill, she may need to miss school and may require

additional time to complete missed work. Please feel free to contact me if you

require further information. Thank you for your assistance in helping to make

Ryanne’s life in college easier.

Id.

VE Testimony

A VE appeared and testified at the hearing before the ALJ. (Tr. 85-89) The ALJ asked the

VE to consider a hypothetical individual with Plaintiff’s age, education, work experience, and

residual functional capacity (“RFC”) as ultimately determined by the ALJ. (Tr. 141). The VE

responded that such an individual could perform jobs such as cashier or cashier II, ticket seller, or

furniture rental clerk. (Tr. 141-42).

Upon questioning from Plaintiff’s attorney, the VE testified that if the individual could

only perform sedentary work with occasional handling, fingering, and feeling, there would not be

jobs available. (Tr. 142-43). Further, the VE testified adding two additional twenty-minute breaks

per day, being off-task more than 15 percent of the day, or missing two days of work per month

would be work-preclusive. (Tr. 143).

ALJ Decision

In her August 28, 2017 written decision, the ALJ found Plaintiff had not attained age

twenty-two as of her alleged onset date, and had not engaged in substantial gainful activity since

her alleged onset date. (Tr. 98). She found Plaintiff had severe impairments of chronic pulmonary

insufficiency, systemic lupus erythematosus, undifferentiated and mixed connective tissue disease,

Raynaud’s syndrome, and obesity, but that these impairments did not meet or medically equal the

severity of a listed impairment. Id. The ALJ then set forth Plaintiff’s RFC:

[T]he claimant has the [RFC] to perform the following: lift/carry/push/pull twenty

pounds occasionally and ten pounds frequently, stand/walk six hours and sit six

hours of an eight-hour workday, occasionally climb ramps, stairs, ladders, ropes, or

scaffolds, frequently stoop, kneel, or crouch, occasionally crawl, and is limited to

frequent exposure to fumes, odors, dusts, gasses, poor ventilation, and extreme

cold.

(Tr. 99). The ALJ then found Plaintiff had no past relevant work, but considering her age,

education, work experience, and RFC, there were jobs that existed in significant numbers in the

national economy that Plaintiff could perform. (Tr. 102). Therefore, the ALJ found Plaintiff not

disabled. (Tr. 103).

STANDARD OF REVIEW

In reviewing the denial of Social Security benefits, the Court “must affirm the

Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the

correct legal standards or has made findings of fact unsupported by substantial evidence in the

record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial evidence

is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health &

Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings “as to any fact

if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,

474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or

indeed a preponderance of the evidence supports a claimant’s position, the court cannot overturn

“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).

STANDARD FOR DISABILITY

Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),

1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of not less

than 12 months.” 20 C.F.R. §§ 404.1505(a) & 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A).

The Commissioner follows a five-step evaluation process—found at 20 C.F.R. §§ 404.1520 and

416.920—to determine if a claimant is disabled:

1. Was claimant engaged in a substantial gainful activity?

2. Did claimant have a medically determinable impairment, or a combination

of impairments, that is “severe,” which is defined as one which substantially

limits an individual’s ability to perform basic work activities?

3. Does the severe impairment meet one of the listed impairments?

4. What is claimant’s residual functional capacity and can claimant perform

past relevant work?

5. Can claimant do any other work considering her residual functional

capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One

through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to

establish whether the claimant has the residual functional capacity to perform available work in

the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,

education, and past work experience to determine if the claimant could perform other work. Id.

Only if a claimant satisfies each element of the analysis, including inability to do other work, and

meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f) &

416.920(b)-(f); see also Walters, 127 F.3d at 529.

DISCUSSION

Plaintiff raises a single challenge to the ALJ’s decision – she asserts the ALJ violated the

well-known treating physician rule in her evaluation of Dr. Brooks’s opinion. In conjunction, she

asserts the ALJ erred in assigning more weight to Dr. Freihofner’s opinion than to Dr. Brooks’s

opinion, when the former had no treatment relationship with Plaintiff and only reviewed her

records.

Generally, the medical opinions of treating physicians are afforded greater deference than

those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007);

see also SSR 96-2p, 1996 WL 374188.1 A treating physician’s opinion is given “controlling

weight” if it is supported by (1) medically acceptable clinical and laboratory diagnostic techniques;

1. Although recent revisions to the CFR have changed the rules regarding evaluation of treating

physician opinions, such changes apply to claims filed after March 27, 2017, and do not apply to

claims filed prior to that date. See Social Sec. Admin., Revisions to Rules Regarding the Evaluation

of Medical Evidence, 82 Fed. Reg. 5852-53, 2017 WL 168819. Plaintiff filed her claim in May

2015 and thus the previous regulations apply.

and (2) is not inconsistent with other substantial evidence in the case record. Wilson v. Comm’r of

Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The requirement to give controlling weight to a

treating source is presumptive; if the ALJ decides not to do so, she must provide evidentiary

support for such a finding. Id. at 546; Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376-77 (6th

Cir. 2013). When the physician’s medical opinion is not granted controlling weight, the ALJ must

give “good reasons” for the weight given to the opinion. Rogers, 486 F.3d at 242 (quoting 20

C.F.R. § 416.927(d)(2)).

“Good reasons” are reasons “sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion and the reasons

for that weight.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188, at *4). When

determining weight and articulating good reasons, the ALJ “must apply certain factors” to the

opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660 (6th Cir. 2009) (citing 20 C.F.R.

§ 404.1527(d)(2)). These factors include the length of treatment relationship, the frequency of

examination, the nature and extent of the treatment relationship, the supportability of the opinion,

the consistency of the opinion with the record as a whole, and the specialization of the treating

source. Id. While an ALJ is required to delineate good reasons, he is not required to enter into an

“exhaustive factor-by-factor analysis” to satisfy the requirement. See Francis v. Comm’r of Soc.

Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011).

In this case, the ALJ set forth her consideration of Dr. Brooks’s opinion:

Treating rheumatologist, Elizabeth Brook[s], M.D., PH.D., noted that the claimant

is primarily limited by her lung disease (Exhibit 6F at 3-8). She also concluded that

the claimant is not able to work and attend college at the same time and that she

experiences reduced endurance (Exhibit 19F). I give some weight to the

conclusions of Dr. Brook[s]. While she is a treating source and noted moderate lung

restriction with a severe diffusion defect as support for her conclusions, her

examinations have been essentially normal (Exhibits 6F at 11, 12F at 9, 13, and 16,

and 17F at 17 and 33). In fact, in February 2017, the claimant reported to another

treating source that walking to a[nd] from class was her primary physical activity,

but reported no limitation in her ability to do so (Exhibit 21F at 1). I also note that

Dr. Brooks concluded that the claimant experiences no mental limitations (Exhibit

18F). I give great weight to this conclusion as there is no evidence or allegations of

mental impairment or limitations.

(Tr. 101).

Here first, the ALJ recognized Dr. Brooks’s status as a treating physician, one factor under

the regulations. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1). Second, she cited the consistency

of Dr. Brooks’s opinion with her own treatment notes, a factor to be considered under the

regulations. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the more consistent a

medical opinion is with the record as a whole, the more weight we will give that medical opinion”).

Plaintiff takes issue with the records cited by the ALJ, arguing that the ALJ erred in describing

them as “essentially normal.” (Doc. 13, at 14). But, for the reasons discussed below, the

undersigned finds the ALJ’s description of these records – found at Tr. 474, 526, 530, 533, 610,

and 626 – a reasonable one.

In the first cited treatment note, from April 2015, Plaintiff argues the ALJ did not recognize

that Dr. Brooks identified Plaintiff’s sedimentation rate as highly elevated “suggestive of active

inflammation”. (Doc. 13, at 14). This is an accurate description of a comment made by Dr. Brooks

in this record (see Tr. 478), but in the physical examination portion of the record, Dr. Brooks noted

normal findings, including clear lungs, full range of motion in all joints without erythema, warmth,

swelling, or active synovitis, and full motor strength (Tr. 474). At this same visit, Plaintiff reported

“she has been doing well and has been feeling well” and denied recent infections, joint problems,

or rashes. (Tr. 472).

In the second cited treatment note, from October 2015, Plaintiff contends the ALJ again

failed to recognize Dr. Brooks’s concern about Plaintiff’s elevated sedimentation rate. However,

Dr. Brooks’s full statement was: “She denies symptoms to suggest active disease although she has

continued to have elevation of her sedimentation rate.” (Tr. 526). Plaintiff secondly states that

“[t]he same examination also discusses recent swelling in both of [Plaintiff’s] hands, and an active

rash with scabbed popular lesions on her arms.” (Doc. 13, at 14) (citing Tr. 522, 526). But these

pages contain notes from Dr. Brooks stating:

Rash to upper arms resolved with weather change and less exposure to sun. She

reports swelling of her right index finger on 10/15 with associated redness to her

fingertip and warmth to her finger. Her symptoms resolved over the weekend. She

denies known injury to the finger. She denies additional joint concerns, redness,

warmth or swelling. She denies morning stiffness.

(Tr. 522). Dr. Brooks noted on examination that Plaintiff had “papular lesions on the upper

extremities bilaterally with scabbing”. (Tr. 526). However, the remainder of Plaintiff’s physical

examination was normal, including full range of motion in all joints without swelling. Id.

In the third treatment note cited by the ALJ, from July 2015, Plaintiff argues the ALJ failed

to discuss Plaintiff’s reported concern about making it to class on time and that she avoided being

outside due to her lupus. (Doc. 13, at 14). But these are Plaintiff’s subjective reports, rather than

findings by Dr. Brooks. See Tr. 531 (“She is not using sunscreen on a daily basis and informs that

she avoids being outdoor during the daytime”; “She reports concern that she will not be able to

make it to classes on time carrying her bookbag due to distance between classes. She is requesting

a letter with her diagnosis and limitations with regard to walking distances especially in colder

weather while carrying her books.”). Moreover, Plaintiff’s avoidance of being outside appears to

be noted in response to a question about whether she was wearing sunscreen regularly, and is not

a finding that she is unable to be outdoors. See id. Although Dr. Brooks agreed to write the

requested letter (Tr. 535), her examination findings at this visit were again mostly normal, see Tr.

533 (clear lungs, full range of motion in all joints without erythema, warmth, swelling, or

synovitis).

Plaintiff also argues the ALJ failed to acknowledge, in a cited treatment note from February

2016, that Plaintiff’s “mother was concerned about her being fatigued after she came home from

the classes when she had to attend in person at Ursuline College.” (Doc. 13, at 14-15). Again, this

is an accurate description of Dr. Brooks’s report of Plaintiff’s mother’s report. See Tr. 624. But

again, Dr. Brooks’s objective findings at this visit were normal (Tr. 626) and Plaintiff reported

“feeling well” (Tr. 624).

Plaintiff also cites a treatment note not cited by the ALJ in evaluating Dr. Brooks’s opinion,

noting that in April 2016, she had nasal congestion, cough, and yellow sputum. (Doc. 13, at 14)

(citing Tr. 615). But Dr. Brooks opined this was “likely viral”. (Tr. 621). And indeed, at her

appointment the following month, Dr. Brooks noted Plaintiff “was sick in late April with a cold

but has otherwise been healthy.” (Tr. 608). Additionally, it is the examination at this follow-up

visit that the ALJ correctly cites as one of those that is “essentially normal.” (Tr. 101) (citing, inter

alia, Tr. 610). Indeed, at this visit, Plaintiff had finished the school year and planned to volunteer

as a nursing assistant. (Tr. 608). Additionally, except for a rash on her right hand, her physical

examination was normal. (Tr. 610) (lungs clear; full range of motion in all joints without erythema,

warmth, swelling, or active synovitis). Thus, the undersigned finds no error in the ALJ’s

description of the cited records from Dr. Brooks as “essentially normal.” (Tr. 101).

Next, the ALJ addressed Plaintiff’s February 2017 report to Dr. Carl that “walking to a[nd]

from class was her primary physical activity” and that she “reported no limitations in her ability

to do so”. (Tr. 101) (citing Tr. 638). Indeed, Dr. Carl noted: “She feels she has good activity

tolerance – walking to and from class is her primary activity – and denies any specific limitation

of any desired activity.” (Tr. 638). This supports the ALJ’s conclusion that Plaintiff was less

limited than opined by Dr. Brooks. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“Generally, the

more consistent a medical opinion is with the record as a whole, the more weight we will give that

medical opinion”).

Plaintiff contends these are not good reasons, and that “[t]o the contrary, the records

reinforce the core of the medical opinion regarding [Plaintiff’s] functional capacity – that the

claimant’s pulmonary and autoimmune system deficiencies preclude [Plaintiff’s] ability to work a

full time job.” (Doc. 13, at 15) (citing Tr. 439, 444, 470, 471). Further, she asserts that “[r]ecords

show a heavily reduced breathing capacity, and poor sedimentation rates (citing Tr. 425, 478, 526,

592), and that “[e]ven with a minimal amount of activity required to attend four hours of class per

week at Ursuline College, Plaintiff still evidences symptoms of fatigue, chronic swelling, and

shortness of breath.” (citing Tr. 146-48, 535, 625). (Doc. 13, at 16). To be sure, there is evidence

in the record that supports Dr. Brooks’s opinion. But the undersigned must affirm if substantial

evidence also supports the ALJ’s decision. Jones, 336 F.3d at 477. Substantial evidence supports

the reasons provided by the ALJ to discount Dr. Brooks’s opinion, and those reasons satisfy the

regulatory requirement.

Finally, Plaintiff contends that the ALJ erred in assigning more weight to the opinion of

State agency reviewing physician Dr. Freihofner. She argues that the ALJ erred as she

“erroneously favored Dr. Freihofner’s medical opinion over Dr. Brook[s]’s even as he had never

examined or treated her, the rest of the medical evidence undermines his conclusions, and he lacks

specialization in the medical fields that study and treat [Plaintiff’s] impairments.” (Doc. 13, at 18-

19). The ALJ considered Dr. Freihofner’s opinion (in conjunction with Dr. Amiri’s opinion on

reconsideration):

Anton Freihofner, M.D., evaluated the claimant’s physical condition based on the

evidence of record without examining the claimant on behalf of the DDD on August

21, 2015 (Exhibit 1A). Dr. Freihofner concluded that the claimant is capable of

light exertion work, but must avoid concentrated exposure to extreme temperatures,

fumes, odors, dusts, gases, and poor ventilation. This assessment was essentially

affirmed upon reconsideration except for the addition of occasional climbing of

ramps, stairs, ladders, ropes, or scaffolds, frequent stooping, kneeling, or crouching,

occasional crawling, and no limitations for exposure to temperature extremes

(Exhibit 5A). I give great weight to the conclusions of the evaluating sources as

they are consistent with the weight of the objective evidence of record, which

documents limited exertional capabilities related to connective tissue disease

complicated by interstitial lung disease. However, physical examinations have been

essentially normal except for occasional notations of a hand rash. As a result, the

claimant is limited to light exertion work. In addition, due to some limitations in

pulmonary functioning, exacerbated by obesity, the claimant is limited to

occasional climbing of ramps, stairs, ladders, ropes, or scaffolds, frequent stooping,

kneeling, or crouching, and occasional crawling[.] In order to avoid exacerbating

her lung disease, the claimant should also avoid more than frequent exposure to

fumes, odors, dusts, gases, poor ventilation, and extreme cold.

(Tr. 101).

Ascribing more weight to a non-examining physician over an examining or treating

physician is not per se error. See, e.g., Norris v. Comm’r of Soc. Sec., 461 F. App’x 433 439 (6th

Cir. 2012) (“Any record opinion, even that of a treating source, may be rejected by the ALJ when

the source’s opinion is not well supported by medical diagnostics or if it is inconsistent with the

record.”) (citations omitted); see also Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th

Cir.2013) (observing that in some circumstances, opinions from State agency medical consultants

may be entitled to greater weight than the opinions of treating or examining sources) (citing SSR

96–6p, 1996 WL 374180, at *3); SSR 96–6p, 1996 WL 374180, at *3 (“In appropriate

circumstances, opinions from State agency medical and psychological consultants and other

program physicians and psychologists may be entitled to greater weight than the opinions of

treating or examining sources.”). State agency medical consultants are “highly qualified physicians

and psychologists who are experts in the evaluation of the medical issues in disability claims under

the [Social Security] Act.” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (first

alteration in original) (internal quotation marks omitted); see also Hoskins v. Comm’r of Soc. Sec.,

106 F. App’x 412, 415 (6th Cir. 2004) (“State agency medical consultants are considered experts

and their opinions may be entitled to greater weight if their opinions are supported by the

evidence.”).

The ALJ in this case reasonably determined the State agency opinions were consistent with

and supported by the record evidence – which, as the ALJ discussed (Tr. 100-01) – contained

numerous normal findings and a stable condition. And, as discussed above, the ALJ provided the

regulatory-required “good reasons” for discounting the opinion of Dr. Brooks.

Thus, the undersigned finds Commissioner’s decision is supported by substantial evidence.

Even though Plaintiff would weigh the medical opinions differently, it is not this Court’s place to

reweigh the evidence. Even if a contrary finding would also have been supported by substantial

evidence, the Court must affirm the Commissioner’s decision where the evidence supports it.

Jones, 336 F.3d at 477.

CONCLUSION

Following review of the arguments presented, the record, and the applicable law, the

undersigned finds the Commissioner’s decision denying CIB and SSI supported by substantial

evidence and affirms that decision.

s/ James R. Knepp II

United States Magistrate Judge