Higdon v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DESTINEY N. HIGDON, Case No. 1:20-cv-458

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Destiney N. Higdon brings this action pursuant to 42 U.S.C. §§ 405(g) and

1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security

(“Commissioner”) denying plaintiff’s application for supplemental security income (“SSI”).

This matter is before the Court on plaintiff’s Statement of Errors (Doc. 14), the Commissioner’s

response in opposition (Doc. 21), and plaintiff’s reply memorandum (Doc. 22).

I. Procedural Background

Plaintiff protectively filed her application for SSI in January 2017, alleging disability

since June 28, 20141, due to the worsening of Histocytois X, interstitial lung disease,

emphysema, COPD, lupus, anxiety, fibromyalgia, and hypothyroidism. The application was

denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted

a de novo hearing before administrative law judge (“ALJ”) Stuart Adkins. Plaintiff and a

vocational expert (“VE”) appeared and testified at the ALJ hearing on April 10, 2019. On May

15, 2019, the ALJ issued a decision denying plaintiff’s SSI application. This decision became

1 Plaintiff’s previous application for benefits was filed on November 16, 2012 and denied by ALJ decision on June

27, 2014. (Tr. 15). After the Appeals Council declined jurisdiction, plaintiff filed a complaint with the United

States District Court for the Southern District of Ohio. See Higdon v. Comm’r of Soc. Sec., No. 1:15-cv-743. On

August 24, 2016, the District Court affirmed the ALJ’s decision. See Id., Doc. 21. The ALJ’s decision became final

and binding when plaintiff did not appeal the Court’s decision.

the final decision of the Commissioner when the Appeals Council denied review on April 13,

2020.

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for SSI, a claimant must suffer from a medically determinable physical or

mental impairment that can be expected to result in death or that has lasted or can be expected to

last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). The

impairment must render the claimant unable to engage in the work previously performed or in

any other substantial gainful employment that exists in the national economy. 42 U.S.C. §

1382c(a)(3)(B).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or mental

impairment – i.e., an impairment that significantly limits his or her physical or

mental ability to do basic work activities – the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the listings

in Appendix 1 to Subpart P of the regulations and meets the duration requirement,

the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not

disabled. If the claimant cannot make an adjustment to other work, the claimant is

disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

416.920(a)(4)(i)-(v), 416.920 (b)-(g)). The claimant has the burden of proof at the first four

steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to

perform the relevant previous employment, the burden shifts to the Commissioner to show that

the claimant can perform other substantial gainful employment and that such employment exists

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. The [plaintiff] has not engaged in substantial gainful activity since January 10,

2017, the application date (20 CFR 416.971 et seq.).

2. The [plaintiff] has the following severe impairments: histocytosis; interstitial

lung disease; emphysema; chronic obstructive pulmonary disorder (COPD); lupus;

fibromyalgia; and anxiety disorder (20 CFR 416.920(c)).

3. The [plaintiff] does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, [the ALJ] finds that the

[plaintiff] has the residual functional capacity to perform sedentary work as

defined in 20 CFR 416.967(a) with no exposure to odors, dust, fumes, gases or

poor ventilation and no exposure to the extremes of heat, cold or humidity. She is

able to tolerate only occasional contact with coworkers and the public. She should

have no jobs which have a production rate pace or strict performance quotas. She

is able to tolerate occasional changes to routine work setting defined as 1-2 per

week.

5. The [plaintiff] is unable to perform any past relevant work (20 CFR 416.965).

6. The [plaintiff] was born [in] . . . 1982 and was 34 years old, which is defined as

a younger individual age 18-44, on the date the application was filed. (20 CFR

416.963).

7. The [plaintiff] has at least a high school education and is able to communicate

in English (20 CFR 416.964).

8. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

9. Considering the [plaintiff]’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the [plaintiff] can perform (20 CFR 416.969 and 416.969a).2

10. The [plaintiff] has not been under a disability, as defined in the Social Security

Act, since January 10, 2017, the date the application was filed (20 CFR

416.920(g)).

(Tr. 18-29).

C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229

(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a

preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In

deciding whether the Commissioner’s findings are supported by substantial evidence, the Court

considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

2 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of

representative sedentary, unskilled occupations such as surveillance system monitor (60,000 jobs in the national

economy); charge account clerk (85,000 jobs in the national economy); and weight tester (15,000 jobs in the national

economy). (Tr. 28, 60).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails

to follow its own regulations and where that error prejudices a claimant on the merits or deprives

the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Errors

On appeal, plaintiff alleges that the ALJ erred in weighing the opinions from her treating

physicians, Dr. Chacko J. Alappatt and Dr. W. Scott Glickfield. (Doc. 14 at PAGEID 728-33).3

Plaintiff also alleges that the ALJ “failed to properly consider and address the additional

limitations caused by the significant side effects from [plaintiff’s] many prescribed medications.”

(Id. at PAGEID 733). Finally, plaintiff alleges that the ALJ “reversibly erred by applying

substantially more rigorous scrutiny to the opinions of longtime treating sources Dr. Alappatt and

Dr. Glickfield than to the opinions of the state agency non-examining sources.” (Id. at PAGEID

733-34). In response, the Commissioner contends that the ALJ reasonably weighed the opinions

of plaintiff’s treating physicians, and the ALJ’s decision in all other regards in substantially

supported by the record. (Doc. 21).

It is well-established that the findings and opinions of treating physicians are entitled to

substantial weight.4 Under the treating physician rule, “greater deference is generally given to

3 Plaintiff alleges no error in the ALJ’s weighing of the other various medical opinions in the record.

4 20 C.F.R. § 416.927, which sets out the treating physician rule for evaluating opinion evidence for SSI claims, has

been amended for claims filed on or after March 27, 2017. See 20 C.F.R. § 416.920c. This amendment does not

apply to plaintiff’s claims, which she filed in January 2017. (See Tr. 15).

the opinions of treating physicians than to those of non-treating physicians. . . .” Rogers, 486

F.3d at 242; Wilson, 378 F.3d at 544. The rationale for the rule is that treating physicians are

“the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s]

medical impairment(s) and may bring a unique perspective to the medical evidence that cannot

be obtained from the objective medical findings alone.” Rogers, 486 F.3d at 242.

A treating source’s medical opinion must be given controlling weight if it is (1) “well-

supported by medically acceptable clinical and laboratory diagnostic techniques,” and (2) “not

inconsistent with the other substantial evidence in [the] case record[.]” 20 C.F.R. §

416.927(c)(2); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). If a

treating source’s medical opinion is not entitled to controlling weight, the ALJ must apply the

following factors in determining what weight to give the opinion: the length of the treatment

relationship and the frequency of examination, the nature and extent of the treatment

relationship, supportability of the opinion, consistency of the opinion with the record as a whole,

and the specialization of the treating source. 20 C.F.R. § 416.927(c). See Wilson, 378 F.3d at

544. See also Blakley, 581 F.3d at 408 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4)

(“Treating source medical opinions [that are not accorded controlling weight] are still entitled to

deference and must be weighed using all of the factors provided in . . . 416.927.”).

In addition, an ALJ must “give good reasons in [the] notice of determination or decision

for the weight [given to the claimant’s] treating source’s medical opinion.” 20 C.F.R. §

416.927(c)(2). The ALJ’s reasons must be “supported by the evidence in the case record, and

must be 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.”

Gayheart, 710 F.3d at 376 (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5). This

requirement serves a two-fold purpose: (1) it helps a claimant to understand the disposition of

h[er] case, especially “where a claimant knows that h[er] physician has deemed h[er] disabled,”

and (2) it “permits meaningful review of the ALJ’s application of the [treating-source] rule.”

Wilson, 378 F.3d at 544.

1. Dr. Alappatt

Plaintiff began seeing her treating rheumatologist Dr. Alappatt in 2010 for diffuse joint

aches. (Tr. 277). Although plaintiff treated with Dr. Alappatt from 2010 to 2017, only treatment

records during the relevant disability period are considered in the determination of whether the

ALJ’s decision is substantially supported by the record. On September 4, 2014, plaintiff

presented with diffuse joint aches and complained of left hip pain. (Tr. 308). On examination,

Dr. Alappatt noted that plaintiff was well-developed, nourished, and in no apparent distress; had

normal respiratory rate and pattern with no distress and normal breath sounds with no rales,

rhonchi, wheezes or rubs; had a normal cardiovascular rate and rhythm without murmurs; and

was alert and oriented times three with appropriate affect and demeanor. (Tr. 309). Dr. Alappatt

noted that plaintiff had nail clubbing, pain in her left shoulder, and tenderness in 11/18

fibromyalgia tender points and the paraspinal musculature. (Id.). On October 15, 2015 plaintiff

presented for a follow-up visit with diffuse joint aches. (Tr. 311). Plaintiff reported that she had

increased pain in her left knee joint for the past three weeks. (Id.). On examination, Dr.

Alappatt reported that plaintiff was well-developed, nourished, and in no apparent distress; had

normal respiratory rate and pattern with no distress and normal breath sounds with no rales,

rhonchi, wheezes or rubs; had a normal cardiovascular rate and rhythm without murmurs; was

alert and oriented times three with appropriate affect and demeanor; and had nail clubbing, pain

in her left shoulder, multiple fibromyalgia tender points, tenderness in her left knee, and Pes

Anserine Bursda (sic) left knee. (Id.). Dr. Alappatt injected Toradol 60mg IM in plaintiff’s right

gluteal area in a sterile fashion without complication. (Tr. 311-13).

On follow-up appointment with Dr. Alappatt on February 3, 2016, plaintiff reported that

she had pain in her shoulder and elbow for the last two weeks. (Tr. 314). Dr. Alappatt noted that

plaintiff had some worsening dyspnea on exertion and rest, but plaintiff had not been back to see

any pulmonology provider in about two years. (Id.). On examination, Dr. Alappatt reported that

plaintiff was well-developed, nourished, and in no apparent distress; had normal respiratory rate

and pattern with no distress and normal breath sounds with no rales, rhonchi, wheezes or rubs;

had a normal cardiovascular rate and rhythm without murmurs; was alert and oriented times

three with appropriate affect and demeanor; and had nail clubbing, pain in her left shoulder, and

tenderness in her left subacromial area and the medial epicondyle. (Id.). Dr. Alappatt opined

that “[a]lthough [plaintiff] ha[d] been told in the past by multiple providers that ‘she ha[d]

Lupus’ we are not able to confirm this diagnosis.” (Tr. 315). Dr. Alappatt noted that plaintiff

seemed to respond to NSAID therapies and occasional injections. (Id.). Dr. Alappatt injected

plaintiff’s subacromial bursa on this date. (Id.). He also suggested that plaintiff see a local lung

specialist because she had been seen “at UC at one point but she has not returned to follow-up.”

(Id.).

On follow-up appointment with Dr. Alappatt on June 12, 2016, plaintiff reported joint

and muscle pain. Plaintiff stated she had seen a local pulmonary specialist and had pulmonary

function tests completed. (Tr. 317). On examination, Dr. Alappatt reported that plaintiff was

well-developed, nourished, and in no apparent distress; had normal respiratory rate and pattern

with no distress and normal breath sounds with no rales, rhonchi, wheezes or rubs; had a normal

cardiovascular rate and rhythm without murmurs; was alert and oriented times three with

appropriate affect and demeanor; and had nail clubbing, pain in her left shoulder, and multiple

fibromyalgia tender points. (Tr. 318). Dr. Alappatt stated that plaintiff had a “poorly defined

muscle and joint syndrome associated with her unusual progressive chronic lung disease.” (Tr.

319). Dr. Alappatt indicated that he wrote “a letter limiting her [plaintiff] to 5 hours/week

work.” (Id.).

Plaintiff reported for a follow-up appointment with Dr. Alappatt on July 15, 2016 with

right knee pain, some swelling, and back pain. (Tr. 320). On examination, Dr. Alappatt reported

that plaintiff was well-developed, nourished, and in no apparent distress; had normal respiratory

rate and pattern with no distress and normal breath sounds with no rales, rhonchi, wheezes or

rubs; had a normal cardiovascular rate and rhythm without murmurs; was alert and oriented

times three with appropriate affect and demeanor; and had nail clubbing, pain and effusion in her

right knee, and multiple fibromyalgia tender points. (Tr. 321). A musculoskeletal ultrasound of

plaintiff’s right knee was performed in which Dr. Alappatt observed joint space narrowing and a

small effusion medially and laterally that was compatible with arthropathy. (Tr. 322).

Plaintiff reported knee pain and swelling on her July 20, 2016 follow-up visit with Dr.

Alappatt. (Tr. 324). On examination, Dr. Alappatt reported that plaintiff was well-developed,

nourished, and in no apparent distress; had normal respiratory rate and pattern with no distress;

was alert and oriented times three with appropriate affect and demeanor; and had nail clubbing,

pain and effusion in her right knee, and multiple fibromyalgia tender points. (Tr. 321). On

September 23, 2016, plaintiff presented to Dr. Alappatt for a follow-up appointment where she

complained of persistent bilateral knee pain. (Tr. 327). Dr. Alappatt noted that plaintiff still had

knee pain and the previous injection “did not help that much.” (Id.). Dr. Alappatt recommended

an x-ray and strongly considered that plaintiff receive an MRI. (Tr. 329). On examination, Dr.

Alappatt noted that plaintiff was well-developed, nourished, and in no apparent distress; had

normal respiratory rate and pattern with no distress and normal breath sounds with no rales,

rhonchi, wheezes or rubs; was alert and oriented times three with appropriate affect and

demeanor; and had nail clubbing, bilateral knee pain, multiple fibromyalgia tender points,

effusion in her right knee, and medial joint line tenderness. (Tr. 328).

On plaintiff’s January 26, 2017 follow-up visit with Dr. Alappatt, plaintiff reported more

joint and muscle pain and bothering in her right and left trochanteric area. (Tr. 331). On

examination, Dr. Alappatt reported that plaintiff was well-developed, nourished, and in no

apparent distress; had normal respiratory rate and pattern with no distress and normal breath

sounds with no rales, rhonchi, wheezes or rubs; was alert and oriented times three with

appropriate affect and demeanor; and had nail clubbing, bilateral knee pain, multiple

fibromyalgia tender points, bilateral trochanteric bursae, right subacromial bursa, left lower

lumbar paraspinals, and effusion in her right knee. (Tr. 332). On February 2, 2017, presented to

Dr. Alappatt for a “DepoMedrol injection.” (Tr. 334). The record demonstrates that plaintiff’s

February 2, 2017 appointment with Dr. Alappatt was plaintiff’s final follow-up visit with Dr.

Alappatt.

On April 5, 2017, Dr. Alappatt wrote a letter that provides:

I am the treating Rheumatologist for Ms. Higdon and have been since November

2010. My patient suffers from a chronic lung disorder known as Histiocytosis X.

This disorder is associated with a chronic joint and muscle pain disorder. She

suffers from dyspnea, cough, fatigue, joint stiffness, cognitive challenges etc. Due

to lack of oxygen, she has fatigue and cognitive challenges. There is no treatment

for Ms. Higdon’s disease.

Ms. Higdon also has a combination of arthritic and pulmonary issues that will cause

her to have indefinite care. She is not able to participate in a competitive work

environment. She is limited to 1 hour of daily desk/computer/phone work 5

days/week.

(Tr. 613).

The ALJ declined to give Dr. Alappatt’s April 2017 opinion controlling weight, and

instead gave it little weight. (Tr. 24-25). The ALJ recited the treating physician rule and

acknowledged that Dr. Alappatt was a specialist with a long treatment history with plaintiff.

(Id.). The ALJ, however, found that the records of Dr. Alappatt “do not demonstrate such severe

restriction.” (Tr. 24). The ALJ stated that Dr. Alappatt’s “records and the remainder of the

record do not support his vague conclusion that [plaintiff] is unable to work more than one hour

per day.” (Tr. 25). The ALJ specifically found that Dr. Alappatt’s “citation to her [plaintiff’s]

symptoms of respiratory problems in support of his conclusion do not correspond with his

physical examinations that show normal respiratory functioning, and his specialization is not

pulmonology but rheumatology.” (Id.). Finally, the ALJ gave little weight to Dr. Alappatt’s

opinion because his conclusion that plaintiff would not be able to participate in a competitive

work environment and would be unable to work more than one hour per day is a conclusion

“reserved to the Commissioner.” (Id.).

Plaintiff alleges that the ALJ erred in giving the opinion of Dr. Alappatt little weight

because the “ALJ’s conclusion appears to be a mere disagreement with the longtime treating

specialist here.” (Doc. 14 at PAGEID 730). The record demonstrates that the ALJ reasonably

discounted the opinion of Dr. Alappatt. The ALJ gave “good reasons” for giving “little weight”

to Dr. Alappatt’s opinion, and those reasons are substantially supported by the record.

First, the ALJ reasonably rejected Dr. Alappatt’s opinion that plaintiff would “not able to

participate in a competitive work environment” as a conclusion reserved to the Commissioner.

(Tr. 25). As the ALJ correctly concluded, a finding that a claimant is disabled or unable to work

is one reserved to the Commissioner based on Social Security rules and regulations. Whether a

person is disabled within the meaning of the Social Security Act, i.e., unable to engage in

substantial gainful activity, is an issue reserved to the Commissioner, and a medical source’s

opinion that his patient is “disabled” or “unable to work” is not “giv[en] any special

significance.” 20 C.F.R. § 416.927(d)(3). See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.

2008) (opinions by medical source on issues reserved to Commissioner are never entitled to

controlling weight or special significance); see also Warner v. Comm’r of Soc. Sec., 375 F.3d

387, 390 (6th Cir. 2004). Therefore, the ALJ properly gave little weight to Dr. Alappatt’s opinion

that plaintiff would not able to participate in a competitive work environment. (Tr. 25).

Second, the ALJ gave Dr. Alappatt’s opinion “little weight” because the substantial

evidence of record did not support his conclusions that plaintiff would not be able to work more

than one hour per day. (Id.). The ALJ reasonably determined that the limitation and restriction

that Dr. Alappatt assessed, i.e., only working one hour per day for five days a week, was

inconsistent with the other medical evidence of record, which consisted of largely normal

examination findings. Specifically, the ALJ noted that Dr. Alappatt’s opinion that plaintiff

exhibited symptoms of respiratory problems in support of his conclusion did “not correspond

with his physical examinations that show normal respiratory functioning.” (Id.). Each of Dr.

Alappatt’s treatment notes demonstrates that plaintiff had “normal respiratory rate and pattern

with no distress” on physical examination. (Tr. 309, 311, 314, 318, 321, 325, 328, 332).

Further, although plaintiff frequently complained of pain in her knees and joints, not a single

treatment note from Dr. Alappatt shows that plaintiff reported any difficulty breathing or had

symptomology indicative of respiratory problems. Therefore, the ALJ reasonably concluded that

Dr. Alappatt’s own treatment notes do not support his opinion. Moreover, physical examinations

with plaintiff’s primary care physician, Dr. Glickfield, document only “occasional[] . . . stridor or

wheezing (e.g. B11F, pp. 24, 28, 31, 38, 45)” and plaintiff “had no hospitalizations for

exacerbations in the relevant period. (B7F, p.6).” (Tr. 24).

Plaintiff points to a March 9, 2016 CT of plaintiff’s chest and a pulmonary function test

dated June 13, 2017 as evidence consistent with Dr. Alappatt’s opinion. (Doc. 14 at PAGEID

730). The March 2016 CT scan showed:

[P]ersistent diffuse cystic lung disease with architectural distortion. Differential

diagnosis remain[ed] similar as previously described to include interstitial lung

disease secondary to lupus, lymphangioleiomyomatosis, or alpha-1 antitrypsin

deficiency. Of note, the previously noted pulmonary nodules [had] markedly

decreased in number and size since the previous examination. This likely

represented superimposed infection/inflammation.

(Tr. 499). Plaintiff fails to explain the significance of this CT scan or how it supports Dr.

Alappatt’s opinion. In addition, plaintiff has not pointed to any medical source evidence

explaining the significance of the CT scan. Nor is there any evidence Dr. Alappatt ever

saw this scan or relied on it. At best, the CT scan appears to confirm plaintiff’s diagnoses

of interstitial lung disease, which the ALJ found to be a severe impairment. (Tr. 18).

Plaintiff’s June 13, 2017 pulmonary function test revealed moderately severe obstructive

defect, air trapping, decreased ERV consistent with body habitus, and moderately decreased

diffusing capacity. (Tr. 398). Plaintiff’s subsequent pulmonary function test on October 3,

2017, however, revealed that plaintiff’s pulmonary function study was “[w]ithin normal limits.”

(Tr. 410-11). The ALJ expressly considered the two pulmonary studies and found that “[i]n

consideration of the more severe findings on the earlier study and the claimant’s history, she is

limited to sedentary work with a variety of respiratory restrictions to accommodate these

conditions.” (Tr. 24). Plaintiff fails to explain how the ALJ’s decision is not substantially

justified in this regard.

Plaintiff also directs the Court to her September 2017 motor vehicle accident as further

proof that the ALJ’s decision was in error. (Doc. 14 at PAGEID 730). Plaintiff argues that a CT

of plaintiff’s cervical spine following the motor vehicle accident showed “small C5-C6 and C6-

C7 disc protrusions.” (Id.) (citing Tr. 476-80). Plaintiff also cites to October 2017 notes from

plaintiff’s physical therapist which documented “impaired joint mobility, motor function, muscle

performance, and range of motion associated with connective tissue dysfunction in addition to

impaired sitting tolerance and disrupted sleep.” (Id.) (citing Tr. 508). Plaintiff, however, fails to

explain how the ALJ allegedly erred in the consideration of this evidence that occurred roughly

six months after Dr. Alappatt gave his opinion in April 2017. The ALJ considered the effect of

plaintiff’s motor vehicle accident and subsequent physical therapy sessions in plaintiff’s

disability determination:

The claimant was involved in a motor vehicle accident in September 2017 and

complained of neck pain (B11F, p. 27). A cervical spine CT showed a small central

disc protrusion (B10F, p. 25). She was prescribed a course of physical therapy for

this. She attended briefly, failed to return, then came back for another course and

did not complete that either, resulting in her discharge (B10F, pp. 66, 94). At her

last encounter in March 2018, she reported significant pain relief (B10F, p. 91). As

this condition appeared to resolve within 12 months, it is also not considered

“severe.” Further, the restriction herein for sedentary work would address any

residuals from this condition.

(Tr. 19). The ALJ considered the impact of the motor vehicle accident in plaintiff’s disability

determination. Plaintiff fails to point to any specific error concerning the ALJ’s treatment of

plaintiff’s alleged injuries resulting from the September 2017 motor vehicle accident.

The above evidence substantially supports the ALJ’s finding that Dr. Alappatt’s opinion

was entitled to little, and not controlling, weight. (Tr. 24-25). The ALJ thoroughly reviewed the

evidence of record and explained the “good reasons” for giving Dr. Alappatt’s opinion “little

weight.” Plaintiff has not cited any relevant evidence of record to show the ALJ’s analysis lacks

substantial support. Accordingly, plaintiff’s assignment of error concerning the weighing of Dr.

Alappatt’s opinion is overruled.

2. Dr. Glickfield

Dr. Glickfield has been plaintiff’s primary care physician for over thirty-six years. (Tr.

25, 413). During the alleged period of disability, plaintiff saw Dr. Glickfield ten times. (See Tr.

564-609). On July 11, 2014, plaintiff presented to Dr. Glickfield for anxiety, fatigue, weight

gain, and neck pain. (Tr. 566).5 Dr. Glickfield stated, “She [plaintiff] applied for disability and

feels that the judge did not consider her case. The information for the rejection was about 60%

in error telling her that she does not have a rheumatologic disease and her lung disease is cured.

Apparently my information wasn’t even considered even though I have known her since she was

1 year old.” (Tr. 566). Dr. Glickfield opined that plaintiff was “totally disabled with little

chance of recovery.” (Id.). On physical examination, Dr. Glickfield reported that plaintiff was

oriented to person, place, time and appeared well-developed and well-nourished; she had normal

rate, regular rhythm, normal heart sounds and intact distal pulses; she exhibited tenderness in her

pulmonary/chest and had rales, but she had no stridor, respiratory distress, or wheezes; she had a

normal mood, affect, and behavior; and her judgment and thought content were normal. (Tr.

565).

On July 28, 2015, Dr. Glickfield reported that plaintiff was having lots of pain and felt

weak, was under a fair amount of stress, and was gaining weight. (Tr. 572). Dr. Glickfield

recommended the continuance of her current treatments and to try B12 due to a family history of

pernicious anemia. (Id.). On physical examination, Dr. Glickfield stated that plaintiff was

oriented to person, place, time and appeared well-developed and well-nourished; she had normal

5 The Court notes that this was the first treatment note from Dr. Glickfield following the prior ALJ decision denying

plaintiff’s application for SSI and DIB. (See Tr. 15-16).

rate, regular rhythm, normal heart sounds and intact distal pulses; her breath sounds were normal

and she had no wheezes or rales; she had a normal mood and affect; and her behavior, judgment,

and thought content were normal. (Tr. 571). On March 7, 2016, plaintiff presented for a follow-

up appointment with Dr. Glickfield. (Tr. 574-77). Dr. Glickfield reported that plaintiff was

“somewhat surprised that in a visit with Dr. Kapur she was told she ha[d] serious lung issues that

may some day require lung transplant. She state[d] she does just fine with her normal exertion

but admits to not have anything in reserve.” (Tr. 575). On physical examination, Dr. Glickfield

stated that plaintiff was oriented to person, place, time and appeared well-developed and well-

nourished; she had normal rate, regular rhythm, normal heart sounds and intact distal pulses;

stridor and rales were present, but she had no respiratory distress or wheezes; and she had a

normal mood and affect and her behavior was normal. (Id.). Dr. Glickfield recommended that

plaintiff return in six weeks. (Tr. 576).

Seven months later, plaintiff returned to Dr. Glickfield for a sore throat, fatigue, and fever

lasting three days. (Tr. 578). On examination, Dr. Glickfield noted that plaintiff was oriented to

person, place, and time and appeared well-developed and well-nourished; stridor was present,

but her breath sounds were normal and she had no wheezes or rales; and she had a normal mood

and affect. (Tr. 579). Plaintiff was told to treat with amoxicillin and to call if she was not

feeling better within three days. (Id.). On May 16, 2017, plaintiff presented to Dr. Glickfield

and stated that she had pain in her left hip and was upset about gaining weight. (Tr. 581). Dr.

Glickfield reported that plaintiff was going to have “breathing tests done.” (Id.). On

examination, Dr. Glickfield stated that plaintiff was oriented to person, place, and time and

appeared well-developed and well-nourished; she had wheezes, but no rales or stridor; she had a

normal mood and affect; and her behavior, judgment, and thought content were normal. (Tr.

582). Dr. Glickfield recommended that plaintiff continue with her current treatments and to

follow-up in six months. (Tr. 583).

On September 22, 2017, plaintiff presented to Dr. Glickfield for an appointment

following a motor vehicle accident. (Tr. 585). Dr. Glickfield reported that plaintiff was seen in

the Emergency Room after she was involved in a motor vehicle accident. (Id.). Plaintiff was

having pain turning her neck. (Id.). On examination, Dr. Glickfield reported that plaintiff was

oriented to person, place, and time and appeared well-developed and well-nourished; she had

stridor, wheezes, and tenderness to her pulmonary/chest but no rales; and she had a normal mood

and affect. (Tr. 586). Dr. Glickfield recommended that plaintiff return in about one month.

(Id.). Plaintiff returned to Dr. Glickfield on March 28, 2018 for a routine check-up where he

noted that plaintiff was having problems with her neck, experiencing back pain, and her left ear

had been popping. (Tr. 588). Dr. Glickfield recommended that plaintiff consider a nasal spray

and treat her ailments with Sudafed and rest. (Tr. 589). On examination, plaintiff was oriented

to person, place, and time and appeared well-developed and well-nourished; stridor was present,

but her breath sounds were normal and she had no wheezes or rales; and she had a normal mood

and affect and her behavior, judgment, and thought content were all normal. (Id.).

On January 16, 2019, plaintiff presented to Dr. Glickfield stating that she was gaining

weight and tired all the time because of her thyroid medication. (Tr. 594).6 Plaintiff reported

that she continued to have difficulty breathing and had difficulty with stressful situations. (Tr.

595). On examination, Dr. Glickfield reported that plaintiff was oriented to person, place, and

time and appeared well-developed and well-nourished; stridor was present, but her breath sounds

6 The Court notes that plaintiff also saw Dr. Glickfield on July 11, 2018 for treatment of a hornet sting where Dr.

Glickfield provided plaintiff medications for treatment and possible infection of the area. (Tr. 590-93). On

examination, plaintiff’s breath sounds were normal; she had no stridor, wheezes, or rales; and she had a normal

mood and affect. (Tr. 592).

were normal and she had no wheezes or rales; and her speech, behavior, judgment and thought

content, and cognition and memory were all normal. (Tr. 595-96). Dr. Glickfield also reported

that plaintiff’s mood appeared anxious and depressed. (Tr. 596). Dr. Glickfield recommended

that plaintiff continue with her current treatments. (Id.). On February 19, 2019, plaintiff

presented to Dr. Glickfield with congestion and sinus drainage that had been present for three

days. (Tr. 602-03). Dr. Glickfield recommended plaintiff take amoxicillin to treat her condition.

(Tr. 604). On examination, Dr. Glickfield reported that plaintiff was oriented to person, place,

and time and appeared to be well-developed and well-nourished; stridor was present, but her

breath sounds were normal and she had no wheezes or rales; and her mood and affect, behavior,

judgment, and thought content were all normal. (Tr. 603). This treatment note was the final

treatment note in the record from Dr. Glickfield.

On January 19, 2019, Dr. Glickfield completed a mental impairment questionnaire on

behalf of plaintiff. (Tr. 413-15). Dr. Glickfield stated that he had been treating plaintiff for

thirty-six years and her DSM-V diagnoses were anxiety and depression. (Tr. 413). Dr.

Glickfield opined that plaintiff’s psychiatric conditions would exacerbate her experience of pain

and other physical symptoms when plaintiff was stressed. (Id.). Dr. Glickfield opined that

plaintiff would be off task due to her physical/psychological problems 20% or more of an

average typical work week and would be absent from work due to her impairments or treatment

more than three times a month. (Id.). Dr. Glickfield opined that on a day-to-day basis in a

regular work setting, plaintiff would have “None to Mild” restrictions in her ability to

understand, remember, or apply instructions and procedures, “moderate” restrictions in her

ability to concentrate, persist, or maintain pace during work activities, and “moderate

restrictions” in her ability to adapt or manage herself during work tasks. (Tr. 414). Dr.

Glickfield also stated that plaintiff had “none to mild” limitations in her ability to plan, maintain

hygiene, and address normal hazards. (Tr. 415). Dr. Glickfield opined that plaintiff “[w]ould

like to work but may only be able to function a few hours a day (~ 3 hrs) and maybe none on

some bad days.” (Id.).

In reviewing Dr. Glickfield’s opinion, the ALJ declined to give it controlling weight and

instead gave it partial weight. (Tr. 25-26). The ALJ acknowledged that Dr. Glickfield had “a

long treatment history with the claimant, noting he has treated her for 36 years.” (Id.). The ALJ

found that Dr. Glickfield’s opinion that plaintiff’s “depression and anxiety symptoms are mild to

moderate” was “consistent with the findings here.” (Id.). The ALJ stated that “Dr. Glickfield’s

records document no complaints of mental health issues by the claimant until she presented for

the January 2019 encounter where Dr. Glickfield completed this form, and at that time he

documented she presented with abnormal mental status findings of anxious and depressed mood

(B11F, pp. 37-38).” (Tr. 26). The ALJ also stated that “[a]t all prior and subsequent encounters

with Dr. Glickfield, the claimant report[ed] no mental health issues and her mental status [was]

noted to be fully normal (B2F, p. 6; B11F, pp. 17, 24, 28, 31, 34, 45).” (Id.).

Plaintiff argues that the ALJ erred in only giving Dr. Glickfield’s opinion partial weight

because “Dr. Glickfield’s opinions are not inconsistent with the clinical findings in the treatment

record.” (Doc. 14 at PAGEID 732-33). Plaintiff also contends that the ALJ is “merely

disagreeing with the longtime treating physician here, which does not constitute substantial

evidence to discount the treating source opinion.” (Id. at PAGEID 732). Plaintiff finally argues

that the ALJ erred by failing to explain which portion of Dr. Glickfield’s opinion was given

partial weight. (Id. at PAGEID 731). The Commissioner argues in opposition that the ALJ

properly weighed the opinion of Dr. Glickfield. (Doc. 21 at PAGEID 762-64).

The ALJ reasonably determined that Dr. Glickfield’s opinion on plaintiff’s mental

functioning was internally inconsistent because his own treatment records document no

complaints of mental health issues, apart from a single instance on January 19, 2019, which was

three days before Dr. Glickfield completed his questionnaire. (Tr. 26). The ALJ thoroughly

reviewed the entirety of Dr. Glickfield’s treatment notes and found that they repeatedly disclosed

normal findings. (Id.). See Gaskin v. Comm’r of Soc. Sec., 280 F. App’x 472, 475 (6th Cir.

2008) (“Unlike the cases where [the Sixth Circuit has] held that the ALJ failed to state ‘good

reasons’ for rejecting the treating physician’s opinion, here the ALJ did not merely cast aside the

treating physician’s opinion without explanation.”); see also Alpajon v. Comm’r of Soc. Sec., No.

1:13-cv-617, 2014 WL 4626012, at *5, 6 (S.D. Ohio Sept. 11, 2014) (the ALJ did not err in

failing to give the treating physician’s opinion controlling weight because the opinion was

inconsistent with his own treatment notes as well as his interpretation of plaintiff’s imaging

studies). Specifically, each of Dr. Glickfield’s treatment notes during the relevant time period,

with the exception of a single instance where plaintiff presented with a “depressed mood” and

“appear[ed] anxious” (Tr. 596), demonstrates that plaintiff had a normal mood and affect, and

her behavior, judgment, and thought content were also normal. (Tr. 565, 571, 575, 579, 582,

586, 589, 592, 603).

In addition, the ALJ reasonably determined that Dr. Glickfield’s restrictions were

inconsistent with the other medical evidence of record, which also consisted of normal

examination findings. (Tr. 26). Specifically, Dr. Alappatt’s examinations of plaintiff

consistently revealed that plaintiff was alert and oriented and had an appropriate affect and

demeanor. (Tr. 309, 311, 314, 318, 321, 325, 328, 332).

Plaintiff does not cite to any evidence of mental health impairments in support of Dr.

Glickfield’s opinion. Instead, plaintiff appears to argue that clinical findings “such as abnormal

muscle tone, deformity, and abnormal coordination” are consistent with Dr. Glickfield’s opinion

that plaintiff would be off task 20 percent or more of the workday and absent from work more

than three times a month due to her impairments. (Doc. 14 at PAGEID 731-32). Yet, Dr.

Glickfield was asked to complete a “Mental Impairment Questionnaire” and gave an opinion

solely related to plaintiff’s mental health functioning. (Tr. 413, listing diagnoses of anxiety and

depression). Nowhere in this questionnaire does Dr. Glickfield relate his opinion to “abnormal

muscle tone, deformity, and abnormal coordination” as plaintiff contends. (Id.). Even so, the

ALJ acknowledged that Dr. Glickfield arguably could have been considering plaintiff’s physical

limitations given his extensive treatment history of plaintiff. (Tr. 26). The ALJ noted, however,

that Dr. Glickfield’s findings of “abnormal muscle tone,” “deformity,” and “abnormal

coordination” were completely absent from the findings of other physicians who examined

plaintiff. (Id.). The ALJ reasonably determined that Dr. Glickfield’s findings are not in keeping

with the abnormalities generally associated with pulmonary conditions, lupus, or fibromyalgia

(Id.) and do not support his opinion.

Plaintiff also contends that the ALJ erred by failing to identify which portions of Dr.

Glickfield’s opinion were “partially” credited. (Doc. 14 at PAGEID 731). The ALJ, however,

expressly stated that Dr. Glickfield’s opinion as to the mild to moderate nature of plaintiff’s

depression and anxiety symptoms was “consistent” with the mental status exams of record,

indicating this portion of Dr. Glickfield’s opinion was credited. (Tr. 25). However, the balance

of Dr. Glickfield’s opinion—that plaintiff would be off task 20% or more of an average typical

work week and would be absent from work due to her impairments or treatment more than three

times a month—was not credited because those opinions were not consistent with the substantial

evidence of record or with Dr. Glickfield’s own treatment records for the reasons explained by

the ALJ and discussed above. (See Tr. 25-26). The Court finds no error in this regard.

The evidence substantially supports the ALJ’s finding that Dr. Glickfield’s opinion was

not entitled to controlling weight. The ALJ reviewed the evidence of record and gave “good

reasons” for giving Dr. Glickfield’s opinion “partial weight.” (See Tr. 26-26). Plaintiff has not

cited any evidence to show that the ALJ’s analysis lacks substantial support in the record.

Accordingly, plaintiff’s assignment of error concerning the weighing of Dr. Glickfield’s opinion

is overruled. See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 549-50 (6th Cir. 2014) (treating

pain management specialist’s opinion not entitled to controlling weight where it was inconsistent

with his treatment notes and results of imaging studies); see also Payne v. Comm’r of Soc. Sec.,

402 F. App’x 109, 112-13 (6th Cir. 2010) (treating physician’s opinion not entitled to controlling

weight where it was inconsistent with his own prior reports and treatment notes); Davidson v.

Comm’r of Soc. Sec., No. 1:12-cv-683, 2013 WL 5670977, at *6-8 (S.D. Ohio Oct. 15, 2013),

report and recommendation adopted, 2014 WL 1271023 (S.D. Ohio Mar. 27, 2014) (The ALJ’s

finding that the treating physician’s opinion was not supported by his own treatment notes was

substantially supported by the record).

Additionally, while not expressly designated as a separate assignment of error, plaintiff

argues that the ALJ “failed to properly consider and address the additional limitations caused by

the significant side effects from [plaintiff’s] many prescribed medications.” (Doc. 14 at

PAGEID 733). In support, plaintiff points to an October 2017 statement from her physical

therapist that plaintiff appeared “very drowsy today” and was “[u]nsure if this [was] related to

side [e]ffects of medication.” (Id.) (citing Tr. 508) (alterations in original). Plaintiff also cites to

her testimony at the ALJ hearing that she was “always exhausted” and takes “so many

medications.” (Id.) (citing Tr. 52-53). Finally, plaintiff cites to a January 2019 progress note

reporting her complaint that her thyroid medication was causing weight gain and made “her extra

tired all the time.” (Id.) (citing Tr. 594).

Plaintiff, however, fails to allege how the ALJ specifically erred in this regard. Contrary

to plaintiff’s argument, the ALJ expressly acknowledged plaintiff’s testimony that “her

medications make her tired and cause other side effects such as sores in her mouth and dry eyes.”

(Tr. 23). In review of the evidence, however, the ALJ reasonably concluded that “[t]here is no

evidence of adverse side effects from treatment or medication that would prevent the claimant

from performing competitive work activity at the ‘sedentary’ level of exertion on a regular and

continuing basis.” (Tr. 27). The ALJ did not err in this finding.

Finally, plaintiff alleges that “the ALJ also reversibly erred by applying substantially

more rigorous scrutiny to the opinions of longtime treating sources Dr. Alappatt and Dr.

Glickfield than to the opinions of the state agency non-examining sources.” (Doc. 14 at

PAGEID 733). Citing to SSR 96-6p, plaintiff argues that “the ALJ’s vague, superficial

‘evaluation’ of the non-examining opinions falls well short of the ‘progressively more rigorous’

scrutiny that he was required to apply to these opinions.” (Id. at PAGEID 734). The

Commissioner argues in response that there is “no evidence that ALJ improperly appl[ied]

substantially more rigorous scrutiny to the treating source opinions here.” (Doc. 21 at PAGEID

765) (internal quotation marks omitted). The Commissioner also argues that plaintiff’s reliance

on SSR 96-6p is improper because “[t]he Agency rescinded SSR 96-6p effective March 27,

2017, long before the date of the ALJ’s May 2019 decision. See SSR 96-6p. It was thus no

longer in effect when the ALJ rendered his decision, and its replacement, SSR 17-2p, contains

none of the language Plaintiff cites.” (Id.).

Although SSR 96-6p was rescinded effective March 27, 2017, it is still applicable in this

case because plaintiff filed her claims before March 27, 2017. See Brown v. Saul, No. 3:19-cv-

583, 2020 WL 1478998, at *9 n. 7 (N.D. Ohio Mar. 26, 2020) (“SSR 96-6p has been rescinded

and does not apply to claims filed after March 27, 2017. Since Plaintiff filed her claim in 2016,

SSR 96-6p still applies.”) (citing SSR 17-2p, 82 Fed. Reg. 15263-02 (Mar. 27, 2017) (rescinding

and replacing SSR 96-6p)).

On April 15, 2017, state agency reviewing psychologist Dr. Robert Baker reviewed the

medical evidence of record, along with the prior June 27, 2014 ALJ decision, and concluded that

“there [was] no new and material evidence” and plaintiff’s “functional limitations continue[d] to

be primarily in the area of social interaction.” (Tr. 73). Dr. Baker did not adopt the psychiatric

review technique findings by the prior ALJ because the evaluation criteria had changed. (Id.).

Dr. Baker, however, adopted the ALJ’s June 27, 2014 mental RFC. (Id.). On June 26, 2017,

state agency psychologist Dr. Kristen Haskins adopted Dr. Baker’s opinion. (Tr. 90).

The ALJ gave “partial weight” to the assessments of Drs. Baker and Haskins. (Tr. 21).

The ALJ noted that they did not adopt the psychiatric review technique findings of the prior ALJ

because the evaluation criteria had changed since that decision was rendered. (Id.). The ALJ,

however, included additional restrictions in the RFC finding “[b]ased on the evidence of record,

including that received at the hearing level[.]” (Id.). Specifically, the ALJ explained that “the

restrictions for no production rate pace or strict production quotas has been added, as well as a

restriction for only occasional changes to a routine work setting. The claimant’s physical

difficulties causing fatigue and some poor stress tolerance she described in testimony and reports

justify these additional restrictions.” (Id.).

On February 11, 2017, state agency reviewing physician Dr. James Cacchillo reviewed

the medical evidence of record and adopted the ALJ’s RFC dated June 27, 2014, i.e., “sedentary

work with no exposure to the extremes of heat, cold, or humidity.” (Tr. 74-75). On October 28,

2017, state agency physician Dr. Steve McKee adopted Dr. Cacchillo’s opinion. (Tr. 89-90, 92).

The ALJ gave “great weight” to the opinions of Drs. Cacchillo and McKee finding that they

were “supported by the record, including evidence received at the hearing level.” (Tr. 26).

Plaintiff argues that the ALJ’s “vague superficial ‘evaluation’ of the non-examining

opinions falls well short of the ‘progressively more rigorous’ scrutiny that [the ALJ] was

required to apply to these opinions.” (Doc. 14 at PAGEID 734). Plaintiff provides no further

explanation, discussion, or analysis as to her arguments pertaining to this alleged error by the

ALJ. Accordingly, the Court finds that plaintiff waived this argument by providing no

explanation as to why she believes the ALJ erred. See Kennedy v. Comm’r of Soc. Sec., No. 03-

1276, 2003 WL 23140056, at *1 (6th Cir. Dec. 12, 2003) (citations omitted) (“[I]ssues which are

‘adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.’”).

Nevertheless, this alleged error is also overruled on the merits because plaintiff has not

demonstrated that the ALJ committed any specific error relating to the assessments of the non-

examining state agency reviewers. See Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 633

(6th Cir. 2016) (“It cannot be said that the ALJ did not subject the non-examining sources’

opinions to scrutiny simply because he adopted their opinions but discredited the treating source

opinions.”). Plaintiff argues that the ALJ erred in categorically giving “great weight” to the non-

examining physicians. (Doc. 14 at PAGEID 734). In making this argument, however, plaintiff

ignores the weight that the ALJ gave to Drs. Baker and Haskins, also non-examining physicians.

The ALJ gave Drs. Baker and Haskins opinions “partial weight” and included additional

restrictions in his RFC finding. (See Tr. 21). Therefore, plaintiff's argument that the ALJ erred

by improperly evaluating the state agency opinions by giving the “opinions of the non-examining

physicians” “great weight” is belied by the record. Plaintiff has not shown that the ALJ

committed any error relating to the assessments of the non-examining state agency reviewers.

This assignment of error is therefore overruled.

IT IS THEREFORE ORDERED THAT:

The decision of the Commissioner is AFFIRMED and this case is closed on the docket

of the Court.

Karen L. Litkovitz

Chief United States Magistrate Judge

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