ENGLISH v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JANE ENGLISH, )

)

Plaintiff, )

)

v. ) 1:20CV62

)

ANDREW M. SAUL, )

Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Jane English, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Disability Insurance Benefits

(“DIB”). (Docket Entry 1.) Defendant has filed the certified

administrative record (Docket Entry 7 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 9, 13; see

also Docket Entry 10 (Plaintiff’s Brief); Docket Entry 14

(Defendant’s Memorandum); Docket Entry 15 (Plaintiff’s Reply)).

For the reasons that follow, the Court should enter judgment for

Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of

June 3, 2016. (Tr. 181-84.) Upon denial of that application

initially (Tr. 79-89, 101-04) and on reconsideration (Tr. 90-100,

110-17), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 109).1 Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 33-78.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 12-28.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

173-80), thereby making the ALJ’s ruling the Commissioner’s final

decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] last met the insured status requirements

of the . . . Act on June 30, 2016.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from her amended alleged onset

date of February 12, 2016 through her date last insured

of June 30, 2016.

. . .

3. Through the date last insured, [Plaintiff] had the

following severe impairments: left upper extremity

complex regional pain syndrome, type I, with status post

cervical stimulator permanent implant on July 25, 2016;

and an open reduced [sic] internal fixation (ORIF) of the

left scaphoid fracture with graft to nonunion on February

12, 2016.

. . .

4. Through the date last insured, [Plaintiff] did not

have an impairment or combination of impairments that met

1 Shortly before Plaintiff’s administrative hearing, she amended her

alleged onset date from June 3, 2016, to February 12, 2016. (See Tr. 198.)

2

or medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. . . . [T]hrough the date last insured, [Plaintiff]

had the residual functional capacity to perform the full

range of light work . . . except she can use the left

upper extremity to frequently handle, but not constantly

handle.

. . .

6. Through the date last insured, [Plaintiff] was

capable of performing past relevant work as a customer

service clerk; salesperson, cosmetics; data entry clerk;

cashier/checker; and membership solicitor. This work did

not require the performance of work-related activities

precluded by [Plaintiff]’s residual functional capacity.

. . .

7. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from February 12, 2016, the

amended alleged onset date, through June 30, 2016, the

date last insured.

(Tr. 17-28 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Plaintiff has

not established entitlement to relief under the extremely limited

review standard.

3

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Social Security Commissioner].” Mastro, 270 F.3d at

176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to

4

whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means 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,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).2 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

2 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

5

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2

(4th Cir. 1999).3 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

3 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.4 Step four

then requires the ALJ to assess whether, based on that RFC, the

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. Id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.5

4 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

5 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

7

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ’s physical [RFC] assessment is not supported by

substantial evidence” (Docket Entry 10 at 6 (standard

capitalization applied) (bold font and single-spacing omitted));

and

2) “[t]he ALJ failed to follow [Social Security Ruling 03-2p,

Titles II and XVI: Evaluating Cases Involving Reflex Sympathetic

Dystrophy Syndrome/Complex Regional Pain Syndrome, 2003 WL 22399117

(Oct. 20, 2003) (‘SSR 03-2p’)] in evaluating complex regional pain

syndrome [(‘CRPS’)] and properly considering the nonexertional

effects of pain” (id. at 9 (standard capitalization applied) (bold

font and single-spacing omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 14 at 13-24.)

1. Physical RFC

Plaintiff’s first assignment of error maintains that “[t]he

ALJ’s physical [RFC] assessment is not supported by substantial

evidence.” (Docket Entry 10 at 6 (standard capitalization applied)

(bold font and single-spacing omitted).) More specifically,

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

8

Plaintiff asserts that the ALJ did “not base[ the physical RFC] on

medical evidence or opinion,” as “[t]he record contains no medical

opinions regarding physical RFC from State Agency physicians or

consultative examiners.” (Id. at 7 (citing Tr. 13, 79-88, 91-

100).) According to Plaintiff, “[t]he record evidence supports a

finding that [Plaintiff] cannot use her left upper extremity for

any sustained activity,” as “[s]he cannot lift and carry weight,

and she is limited to less than occasional use of the left upper

extremity for handling.” (Id.; see also id. at 7-8 (describing

evidence Plaintiff believes supports greater left upper extremity

restrictions in RFC (citing Tr. 57-59, 68-69, 256, 279, 282, 643,

653, 655, 708, 733, 750, 759, 770, 1009)).) Plaintiff maintains

that “[t]he ALJ’s failure to incorporate [Plaintiff]’s severe

handling limitation into her RFC was harmful,” because “[t]he VE

testified that a limitation to less than occasional use of the

non-dominant arm would preclude all of [Plaintiff]’s past relevant

work.” (Id. at 9 (citing Tr. 75-76).) Plaintiff’s contentions

miss the mark.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 404.1545(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b). The ALJ then

9

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 404.1567. Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 404.1569a(c). An ALJ need not

discuss every piece of evidence in making an RFC determination.

See Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.

2014). However, “the ALJ must both identify evidence that supports

his [or her] conclusion and build an accurate and logical bridge

from that evidence to [that] conclusion.” Woods v. Berryhill, 888

F.3d 686, 694 (4th Cir. 2018) (internal emphasis, quotation marks,

and brackets omitted).

As an initial matter, although the ALJ adjudicated the

approximately four-and-a-half-month period of time from Plaintiff’s

amended alleged onset date of February 12, 2016, to her date last

insured (“DLI”) of June 30, 2016 (see Tr. 28), he also found that,

based on record evidence showing significant improvement in

Plaintiff’s pain after both trial and permanent implantation of a

spinal cord stimulator on July 11 and 25, 2016, respectively (see

Tr. 284-95, 708, 733), Plaintiff did not “retain the capacity for

the [RFC until] August 4, 2016” (Tr. 26 (emphasis added)).

Although the ALJ thus found that Plaintiff did not possess an RFC

for light work with frequent handling during the nearly six-month

period from her amended onset date of February 12, 2016, to August

10

4, 2016, the ALJ nevertheless did not find Plaintiff disabled

because “there [wa]s no continuous period of over 12-months when

[Plaintiff] d[id] not retain th[e RFC] that involve[d] any part

[of] the period for adjudication from February 12, 2016 through

June 30, 2016” (Tr. 20 (emphasis added)).

In light of those findings by the ALJ, Plaintiff’s reliance on

evidence preceding the trial implantation of her spinal cord

stimulator on July 11, 2016 (see Docket Entry 10 at 7-8 (citing Tr.

256, 279, 282, 643, 653, 655)), as well as evidence post-dating

June 30, 2017 (i.e., 12 continuous months after her DLI of June 30,

2016) (see id. at 8 (citing Tr. 1009)) to attack the ALJ’s RFC

finding lacks relevance to the Court’s inquiry. Moreover, as

discussed more fully below, the ALJ’s discussion of the evidence

from July 11, 2016, to June 30, 2017, supplies the necessary

“accurate and logical bridge,” Woods, 888 F.3d at 694 (internal

quotation marks omitted), between the evidence and her findings

that Plaintiff’s left upper extremity impairment qualified as

severe (see Tr. 17) but did not, as of August 4, 2016 (see Tr. 26),

cause limitations greater than the lifting and carrying

requirements of light work and frequent handling with the left

upper extremity (see Tr. 20).

First, the ALJ’s evaluation of Plaintiff’s subjective symptom

reporting supports the ALJ’s finding that, as of August 4, 2016,

Plaintiff could perform the lifting, carrying, and handling set

11

forth in the RFC. In that regard, the ALJ expressly acknowledged

Plaintiff’s testimony that “she was unable to lift or carry because

her arm was getting weaker” (Tr. 21), “that she was unable to type

because she could not use her hands” (Tr. 22), and that, “if she

held things too long[,] then she would drop things because her

fingers were weak[ and] . . . felt as though they were sticking

together” (id.). However, the ALJ found that Plaintiff’s

“statements concerning the intensity, persistence and limiting

effects of [her] symptoms [we]re not entirely consistent with the

medical evidence and other evidence in the record for the reasons

explained in th[e ALJ’s] decision.” (Tr. 26-27.)

In support of that finding, the ALJ remarked that, “in August

2016, six months after the amended alleged onset date, the medical

records reflect a substantial elimination of subjective complaints

and an [sic] essentially normal physical examinations in July 2016

and August 2016 with use of the cervical stimulator.” (Tr. 24

(emphasis added).) The ALJ then found that, “[b]ased on the

objective clinical findings on physical examinations and imaging

studies and her own subjective reports, [Plaintiff] experienced

substantial[ly] increased activities of daily living and her pain

was greatly reduced after both the trial of spinal cord stimulator

and the permanent placement of the stimulator as reflected in the

July 2016 and August 2016 medical treatment notes and group

[therapy] notes.” (Tr. 26 (emphasis added).) With regard to daily

12

activities, the ALJ noted that Plaintiff “worked part-time walking

dogs” (Tr. 22), remained “able to go shopping, drive, cook, and

hold a book” (Tr. 23), “could tie her own shoes and button her own

buttons” (id.), and remained “able to trim her fingernails without

pain,” as well as “to wear sleeves” (id.). The ALJ further

observed that, in September 2016, Plaintiff “reported that she was

getting 75 percent improvement in her pain with the stimulator” and

“continued to be happy with her pain relief and excited about the

activities she was now able to do” (Tr. 24 (referencing Tr. 737)),

that Plaintiff “indicated [in February 2017] that she did not want

to turn the stimulator off because she was able to do more than she

was before” (id. (referencing Tr. 811)), and that, “[d]uring

subsequent visits [in April and July 2017], it was noted that...

“[t]laking Topomax at night improved her pain,” and that she “was

starting back to her graduate work as of August 2017” (id.

(referencing Tr. 835, 852)). Plaintiff did not challenge any of

these findings by the ALJ. (See Docket Entries 10, 15.)°®

®° In Plaintiff’s Reply, she maintains that her CRPS “symptoms did not

resolve with the spinal cord stimulator.” (Docket Entry 15 at 3; see also id.

at 3-4 (detailing evidence after August 2016 Plaintiff believes reflected

continuing disabling symptoms (citing Tr. 750, 753, 762, 770, 811)).) According

to Plaintiff, “(t]he brief period of improvement in symptoms that occurred with

the initial implanting of the trial [spinal cord stimulator] does not undermine

[Plaintiff]’s claim,” as “Social Security policy recognizes that many impairments

are subject to exacerbation and remission, and temporary remissions do not

usually prevent claimants from meeting the ‘continuous period’ criteria” for

disability. (Id. at 4.) That argument falls short, because the ALJ neither

found that the spinal cord stimulator “resolve[d]” Plaintiff’s symptoms nor that

Plaintiff suffered no limitations following implantation of the stimulator.

Rather, the ALJ acknowledged Plaintiff’s ongoing complaints of pain, altered

sensation, and decreased range of motion (see Tr. 25-26), but found that the

13

Second, by merely pointing to record evidence Plaintiff

believes supported greater limitations on her abilities to lift,

carry, and handle (see Docket Entry 10 at 7-8), she misinterprets

this Court’s standard of review. The Court must determine whether

substantial evidence, i.e., “more than a mere scintilla of evidence

but . . . somewhat less than a preponderance,” Mastro, 270 F.3d at

176 (brackets and internal quotation marks omitted), supported the

ALJ’s findings regarding Plaintiff’s abilities to lift, carry, and

handle, and not whether other record evidence weighed against those

findings, see Lanier v. Colvin, No. CV414-004, 2015 WL 3622619, at

*1 (S.D. Ga. June 9, 2015) (unpublished) (“The fact that [the

p]laintiff disagrees with the ALJ’s decision, or that there is

other evidence in the record that weighs against the ALJ’s

decision, does not mean that the decision is unsupported by

substantial evidence.”).

Here, the ALJ discussed the following objective medical

evidence relating to Plaintiff’s left upper extremity impairment

during the time period from July 11, 2016, to June 30, 2017:

• at post-operative evaluation following trial

implantation of the spinal cord stimulator, “it was

noted that [Plaintiff] did not exhibit any pain

behaviors[, h]er sensation was intact[, ] she had

5/5 motor strength throughout[,] . . . her left

upper extremity was able to be tested without her

guarding[, and t]here were no color, sweating, or

temperature changes except a decreased size of her

stimulator “greatly reduced” Plaintiff’s pain and “substantially increased”

Plaintiff’s ability to function. (Tr. 26.)

14

left wrist” (Tr. 23 (emphasis added) (referencing

Tr. 287));

□ “after [Plaintiff] underwent permanent placement of

the stimulator, there were no signs of infection

and good coverage into her left hand and arm” (id.

(emphasis added) (referencing Tr. 289));

□ In December 2016 and February 2017, “[p]hysical

examinations showed that [Plaintiff] no longer

guarded her left upper extremity even though the

sensation was altered” (Tr. 24 (emphasis added)

(referencing Tr. 775, 793)); and

“[d]uring subsequent visits [in April and July

2017], it was noted that . . . [h]ler stimulator

continued to work well and she had good coverage

into her left upper extremity” (id. (emphasis

added) (referencing Tr. 835, 852)).

That analysis, along with the ALJ’s evaluation of Plaintiff’s

subjective symptom reporting discussed above, provides substantial

evidence to support the ALJ’s finding that, as of August 4, 2016,

Plaintiff retained the RFC to perform light work with frequent

handling with the left upper extremity.

Plaintiff nevertheless faults the ALJ for formulating the RFC

without “medical opinions regarding physical RFC from State Agency

physicians or consultative examiners” (Docket Entry 10 at 7

(citing Tr. 13, 79-88, 91-100)), arguing that the absence of such

opinions renders the RFC “[un]supported by substantial evidence”

(id. at 6-7).’ However, as the Commissioner explains, RFC

7A single decision-maker (“SDM”), i.e., a non-medical source, provided the

initial-level determination (see Tr. 79-88) and thus the ALJ neither considered

nor weighed that determination (see Tr. 27). The reconsideration-level physician

found insufficient evidence to assess Plaintiff’s physical RFC. (See Tr. 94-95.)

15

constitutes “an administrative finding, not [a] medical

assessment,” and “the responsibility for assessing a plaintiff’s

RFC rests solely with the ALJ, [and] not with any particular

medical source.” (Docket Entry 14 at 15 (citing 20 C.F.R.

§ 404.1546(c)).) As a result, “[t]he ALJ was not required to

obtain an expert medical opinion as to [Plaintiff]’s RFC.”

Felton-Miller v. Astrue, 459 F. App’x 226, 231 (4th Cir. 2011); see

also Wykle v. Saul, No. 1:19CV155, 2020 WL 697445, at *6 (W.D.N.C.

Feb. 11, 2020) (unpublished) (holding, in case where state agency

medical consultants found insufficient medical evidence before the

claimant’s DLI to render opinion on the claimant’s RFC, that “there

is no requirement that an ALJ base his RFC finding, or any

particular limitation in it, on a medical opinion” (citing Felton-

Miller, 459 F. App’x at 230-31)); Moore v. Colvin, No. 15CV425,

2016 WL 1714117 (D.S.C. Apr. 29, 2016) (unpublished) (holding that

“the ALJ is not required to rely on medical opinions to formulate

an RFC assessment, as the ‘ALJ is not precluded from reaching RFC

determinations without outside medical expert review of each fact

incorporated into the decision’” (quoting Chandler v. Commissioner

of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011))). As discussed

above, the ALJ sufficiently supported the RFC with her discussion

of Plaintiff’s subjective symptom reporting and the objective

medical evidence.

16

As the Court can trace the path of the ALJ’s reasoning with

regard to Plaintiff’s abilities to lift, carry, and handle,

Plaintiff’s first issue on review falls short.

2. Non-Exertional Effects of Pain

In Plaintiff’s second and final issue on review, she faults

the ALJ for “fail[ing] to follow SSR 03-2p in evaluating [CRPS] and

properly considering the nonexertional effects of pain.” (Docket

Entry 10 at 9 (standard capitalization applied) (bold font and

single-spacing omitted); see also Docket Entry 15 at 5-6.)

According to Plaintiff, “SSR 03-2p states that psychological

manifestations related to []CRPS should be evaluated under the

mental disorders listings,” but that “the ALJ . . . instead[ ]

considered only [Plaintiff]’s history of attention deficit

hyperactivity disorder [(‘ADHD’), ] bulimia and anorexia.” (Docket

Entry 10 at 9 (referencing Tr. 16); see also id. at 10 (noting

ALJ’s finding that Plaintiff “had no more than a mild limitation

due to symptoms of her medically determinable mental impairments”

(quoting Tr. 19 (emphasis added by Plaintiff)).) Plaintiff further

contends that the ALJ improperly discounted opinions regarding the

non-exertional effects of Plaintiff’s pain from 1) her treating

pain psychologist Dr. Miriam H. Feliu (see id. at 10-12), 2)

Plaintiff’s history professor Dr. Jerry Gershenhorn (see id. at 12-

14), and 3) her fiancé Jeremiah Minion (see id. at 14-15).

Plaintiff deems the ALJ’s above-described errors “harmful,” because

17

“[Ta]1ll [] jobs relied upon by the ALJ to support her finding that

[Plaintiff] is not disabled are at least semi-skilled” (id. at 12

(citing Tr. 24)), and “the VE testified that being off-task more

than 10% of a workday or missing more than two days of work per

month would preclude competitive employment” (id. (citing Tr. 76)).

Those arguments do not warrant reversal or remand.

a. SSR_03-2p

As Plaintiff argues (see Docket Entry 10 at 9), SSR 03-2p

recognizes the adverse impact that an individual’s CRPS may have on

his or her ability to function mentally:

Chronic pain and many of the medications prescribed to

treat it may affect an individual’s ability to maintain

attention and concentration, as well as adversely affect

his or her cognition, mood, and behavior, and may even

reduce motor reaction times. These factors can interfere

with an individual’s ability to sustain work activity

over time, or preclude sustained work activity

altogether. When evaluating duration and severity, as

well as when evaluating RFC, the effects of chronic pain

and the use of pain medications must be carefully

considered. . . . Psychological manifestations related

to [JCRPS should be evaluated under the mental disorders

listings, and consideration should be given as to whether

the individual’s impairment(s) meets or equals the

severity of a mental listing.

SSR 03-2p, 2003 WL 22399117, at *5-6 (emphasis added).

Here, however, the ALJ’s decision demonstrates that she

complied with the above-emphasized directive of SSR 03-2p. The ALJ

expressly evaluated the impact of Plaintiff’s mental symptoms on

her ability to maintain concentration, persistence, or pace (“CPP”)

as follows:

18

In [CPP], [Plaintiff] had no more than a mild limitation

due to symptoms of her medically determinable mental

impairments. It was noted that [Plaintiff] was able to

work two part-time jobs as dog/house sitter and pool

attendant. During this relevant period, she testified

that she was able to drive herself places during the

daytime, and the self-imposed limitation for driving in

the evenings was due to a physical limitation, not mental

symptoms. Importantly, in June 2016, the psychological

assessment showed average range of impulsiveness and made

no mention of concern with her ability to attend and

complete the self-reported questionnaires or her focus in

conversations during this evaluation.

(Tr. 19 (internal parenthetical citation omitted) (citing Tr. 296-

302).) The fact that the ALJ did not explicitly state that he

considered the impact of pain on Plaintiff’s ability to concentrate

does not render his analysis violative of SSR 03-2p. Plaintiff’s

ability to maintain her CPP well enough to hold two part-time jobs

and drive do not depend on the source of her CPP deficits, i.e.,

her CRPS pain versus her ADHD, anorexia, bulimia, depression, or

anxiety. Moreover, in finding mild deficits in CPP, the ALJ

expressly relied upon findings relating to CPP in Plaintiff’s

evaluation by Dr. Feliu, a pain psychologist. (Id.; see also Tr.

299 (reflecting Dr. Feliu’s observation that Plaintiff remained

“attentive and oriented during the interview” (emphasis added));

Tr. 300 (documenting Plaintiff’s “[a]verage” score in

“[i]mpulsiveness” on the Revised NEO Personality Inventory (“NEO-

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PI-R”)).)°® Thus, Plaintiff has not shown that the ALJ violated SSR

03-2p.

b. Dr. Feliu’s Opinions

On a pre-printed questionnaire dated May 21, 2018, Dr. Feliu

diagnosed Plaintiff with moderate, recurrent major depressive

disorder and anxiety related to her pain, which result in crying

spells, depressed mood, difficulties with activities, decreased

focus, concentration, and memory, and difficulties with sleep.

(See Tr. 1024.) Dr. Feliu opined that Plaintiff’s mental

impairments and pain would interfere with her ability to maintain

attention sufficiently to perform simple tasks in the workplace

(see Tr. 1025), cause Plaintiff to remain off-task for more than 15

percent of the workday (see id.), impair her ability to

appropriately handle workplace stresses (see id.), prevent

Plaintiff from maintaining a schedule and regular, punctual

attendance (see Tr. 1026), and cause her to miss work more than

four days per month (see id.). Dr. Feliu estimated that

Plaintiff’s limitations had existed since at least February 12,

2016, her amended onset date and the date of her ORIF surgery.

(See id.)

® Significantly, Dr. Feliu noted Plaintiff’s attentiveness on June 16,

2016, prior to the significant improvement in Plaintiff’s pain after trial and

permanent implantation of the spinal cord stimulator on July 11 and 25, 2016,

respectively. (See Tr. 299, 708, 733.)

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The ALJ thoroughly discussed the substance of Dr. Feliu’s

opinions (see Tr. 25-26), and then evaluated and weighed them as

follows:

[Dr. Feliu’s] opinion is being given little weight by the

[ALJ] because it is not consistent with the psychology

doctor’s own treatment notes. For example, just days

prior to the [DLI] in June 2016, Dr. Feliu performed an

extensive psychological evaluation and assessed

[Plaintiff] as objectively reporting less than average

anxiety and depressive symptoms for a comparable age,

gender and peer person and average range of impulsiveness

[(Tr. 300-01)]. Further, this opinion was given in May

2018 and does not necessarily relate to the medical

evidence in the applicable adjudicated period from

February through June 2016. In addition, many of the

statements of limitation by the Ph.D. were based on

[Plaintiff]’s subjective reports of physical pain

including limitations that would impact her physical

functioning from this condition, which are clearly beyond

the expertise of the Ph.D. to assess such physical

related work limitations.

(Tr. 26 (emphasis added).) Plaintiff challenges the ALJ’s

assignment of “little weight” to Dr. Feliu’s opinions (id.) on

three grounds, none of which carry the day.

First, Plaintiff asserts that Dr. Feliu’s opinions warrant

“controlling weight pursuant to 20 [C.F.R. § ]404.1527[, a]nd even

if not entitled to controlling weight, .. . [then] great weight.”

(Docket Entry 10 at 11.) According to Plaintiff, “Dr. Feliu is the

treating psychologist and a specialist in pain psychology,” and

“[Th]er opinion regarding the effects of pain on [CPP] is

uncontradicted.” (Id. (emphasis added).) That argument, however,

overlooks the opinions of the state agency psychological

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consultants. (See Tr. 82-83, 94-96.) At the initial level of

review, the consultant specifically considered the impact of

Plaintiff’s pain on her mental functioning:

[Plaintiff] was noted to have significant physical pain

related to an arm injury. The evidence suggests that

[Plaintiff] experienced mood fluctuations in response to

her pain levels. Prior to undergoing surgery on her arm,

[Plaintiff] indicated significant anxiety and fear about

having to face pain for the remainder of her life.

(Tr. 83 (emphasis added).) Even considering the impact of

Plaintiff’s “significant physical pain” on her mental functioning

(id.), that consultant rated Plaintiff’s limitation in CPP as only

“mild” (id.). The reconsideration-level state agency psychological

consultant expressly relied on pain psychologist Dr. Feliu’s

findings during a comprehensive psychological assessment on June

16, 2016, that Plaintiff remained “alert and oriented,” “coherent,”

“able to follow the interview,” and “goal directed” (Tr. 96), and

similarly assessed Plaintiff’s CPP deficit as “mild” (id.). The

ALJ accorded “great weight” to the consultants’ opinions (Tr. 27)

and thus the ALJ specifically credited opinions that contradicted

the opinions of Dr. Feliu.

Plaintiff’s argument also fails to address the ALJ’s finding

that Dr. Feliu’s opinions lacked consistency “with the psychology

doctor’s own treatment notes,” as well as the ALJ’s express

notation of Dr. Feliu’s observation on June 16, 2016, that

Plaintiff “report[ed] less than average anxiety and depressive

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symptoms . . . and average range of impulsiveness” (Tr. 26

(referencing Tr. 300-01)). (See Docket Entry 10 at 10-12.)° The

ALJ properly declined to accord Dr. Feliu’s opinions controlling

weight, as he found that those opinions lacked consistency with Dr.

Feliu’s own treatment notes. See Craig, 76 F.3d at 590 (“[I]f a

physician’s opinion is not supported by clinical evidence or if it

is inconsistent with other substantial evidence, it should be

accorded significantly less weight.”); see also 20 C.F.R.

§ 404.1527 (c) (2)-(A4).

Second, Plaintiff challenges “[t]he ALJ’s finding that Dr.

Feliu’s opinion d[id] not relate to [Plaintiff]’s impairments prior

to the DLI” (Docket Entry 10 at 11 (citing Tr. 23)), because “Dr.

Feliu specifically stated that [Plaintiff’s] limitations ha[d] been

in effect since February 12, 2016” (id. at 12). However, merely

because Dr. Feliu stated her opinion that Plaintiff’s limitations

existed as far back in time as February 12, 2016, does not

establish that Dr. Feliu adequately supported that opinion, or that

the opinion merited deference by the ALJ. Dr. Feliu admitted that

she first evaluated Plaintiff on June 16, 2016 (see Tr. 1027; see

also Tr. 296-302), over four months after February 12, 2016.

° After the initial psychological assessment with Dr. Feliu on June 16,

2016, Plaintiff participated in individual therapy sessions with Dr. Feliu on

more than 20 occasions from June 27, 2016, to April 24, 2018. (See Tr. 303-05,

767, 770, 825, 834, 850, 851, 867, 868, 886, 962, 972, 973, 1005, 1007, 1019-23.)

During those sessions, Dr. Feliu recorded only Plaintiff’s subjective complaints

and did not document any findings on mental status examination. (See id.)

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Furthermore, as the Commissioner notes, “when explaining her

proffered limitations, Dr. Feliu used present tense language.”

(Docket Entry 14 at 22.) Moreover, on the questionnaire itself,

Dr. Feliu did not clarify the basis for her opinion prior to June

16, 2016. (See Tr. 1026.) Under those circumstances, the ALJ did

not err by discounting Dr. Feliu’s opinion, in part, because it did

not adequately address the time period between February 12, 2016,

and June 30, 2016. (See Tr. 26.)

Third, Plaintiff contests “[t]he ALJ’s contention that

assessing the vocational impact of pain is ‘beyond the expertise’

of a pain psychologist” (Docket Entry 10 at 12 (quoting Tr. 26)),

and maintains that “Dr. Feliu’s opinion evidence is exactly the

type of evidence that SSR 03-2p directs the [ALJ] to seek out in

assessing the affects of [CRPS] on a claimant’s ability to maintain

attention and concentration needed to complete work tasks” (id.).

To the extent the ALJ discredited Dr. Feliu’s opinions because she

based _ them_on Plaintiff’s subjective complaints of pain (see Tr.

26), the ALJ did not err. As discussed above, during individual

therapy sessions, Dr. Feliu recorded only Plaintiff’s subjective

complaints and did not document any findings on mental status

examination. (See Tr. 303-05, 767, 770, 825, 834, 850, 851, 867,

868, 886, 962, 972, 973, 1005, 1007, 1019-23.) However, to the

extent the ALJ faulted Dr. Feliu for offering “limitations that

would impact [Plaintiff’s] physical functioning” and/or “physical

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related work limitations” (Tr. 26 (emphasis added)), the ALJ erred.

Although Dr. Feliu mentioned that Plaintiff’s chronic pain caused

physical issues like “difficulties [with] activities” (Tr. 1024),

Dr. Feliu did not offer physical work-related limitations, such as

limitations on lifting, carrying, postural movements, and

manipulative movements (see Tr. 1024-27). However, because the ALJ

based his discounting of Dr. Feliu’s opinions on three other

reasons supported by substantial evidence, the ALJ’s error in that

regard qualifies as harmless. See McNeill v. Berryhill, No.

1:16CV1081, 2017 WL 1184187, at *8 (M.D.N.C. Mar. 29, 2017)

(unpublished) (“Given the ALJ’s other bases for discounting [the

treating physician]’s opinions . . ., the ALJ’s improper reliance

on his personal observations of [the p]laintiff did not render his

analysis of those opinions unsupported by substantial evidence.”),

recommendation adopted, slip op. (M.D.N.C. Apr. 24, 2017) (Eagles,

J.); Foster v. Colvin, No. CIV.A. 6:13–926, 2014 WL 3829016, at *11

(D.S.C. Aug. 4, 2014) (unpublished) (holding that, “even if the ALJ

erred by considering whether the statement was prepared in

anticipation of litigation, . . . such error was at most harmless

as the ALJ gave several valid reasons for discounting [the treating

physician’s] opinion”).

c. Professor Gershenhorn’s Statements

Professor Gershenhorn addressed a letter to Plaintiff’s

attorney, dated May 1, 2018, in which he stated that, “[s]tarting

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with the spring 2016 semester, [he] ha[d] seen [Plaintiff] in a lot

of pain, which ha[d] affected her course work,” and that “she had

to withdraw from [his] class because of severe pain.” (Tr. 242.)

In addition, Professor Gershenhorn noted that, in the fall of 2016,

Plaintiff “took an incomplete in [his] class[ and ] completed the

class later on by emailing in work” and that, in the fall of 2017,

Plaintiff “was rarely able to attend [his] class because of severe

pain[, ] when she did come to class, she had to leave early[, and

s]he was able to complete the class by submitting her work

electronically.” (Id.) The ALJ accorded “little weight” to

Professor Gershenhorn’s statements, “because the Professor was only

able to observe [Plaintiff] in a very limited capacity and he d[id]

not possess the requisite knowledge of a medical professional to

know how [Plaintiff]’s impairments would impact her ability to

perform work-related activities.” (Tr. 27.)

Plaintiff disputes “[t]he ALJ[’s] state[ment] that she gave

Dr. Gershenhorn’s opinion little weight because he observed

[Plaintiff] in ‘a very limited capacity’ and did not know how her

impairments would impact her ability to perform work-related

activities.” (Docket Entry 10 at 13 (quoting Tr. 27).) According

to Plaintiff, “Dr. Gershenhorn . . . had observed first-hand the

difficulties that [Plaintiff] had performing sedentary work, very

few hours per week,” and his “statement is fully consistent with

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[Plaintiff]’s testimony regarding her difficulties completing

classwork.” (Id. at 13-14.)

The ALJ did not err in discounting Professor Gershenhorn’s

statements because he “observe[d Plaintiff] in a very limited

capacity” and “d[id] not . . . know how [Plaintiff]’s impairments

would impact her ability to perform work-related activities.” (Tr.

27.) Professor Gershenhorn commented only on Plaintiff’s apparent

difficulty with sitting in his classroom, and did not offer

observations regarding Plaintiff’s abilities to perform any of the

other work-related physical abilities, such as lifting, carrying,

standing, walking, pushing, pulling, and performing postural and

manipulative movements. (See Tr. 242.) The ALJ found that

Plaintiff retained the RFC to perform light work (see Tr. 20),

which entails up to six hours of standing and walking in an eight-

hour workday and only a maximum of two hours of sitting, see 20

C.F.R. § 404.1567 (b), as well as that Plaintiff remained able to

perform light-exertion past relevant work as a customer service

clerk, cosmetics salesperson, cashier/checker, and membership

solicitor (see Tr. 27). Thus, Professor Gershenhorn’s limited

observation of Plaintiff’s ability to sit constitutes a proper

ground on which to discount his statements.

d. Jeremiah Minion’s Opinions

Minion dated a “To Whom It May Concern” letter on May 29,

2018, in which he stated that Plaintiff “cannot lift anything or

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use her left arm for any sort of manual labor,” that, after “the

CRPS [] spread to her back, sitting in one place without the aid of

numerous pillows for more than an hour has been very difficult,”

that “[s]ome of the medications that [Plaintiff] is on have an

effect on her focus and memory[ and that s]he becomes distracted

easily,” and that “[t]here is simply no possible way that she

w[ould] be able to work a normal job in her present condition.”

(Tr. 250.) The ALJ evaluated and weighed Minion’s letter as

follows:

The third party opinion of [Plaintiff]’s fiancé, Jeremiah

Minion is being given limited weight by the [ALJ] for the

same reason as [Plaintiff]’s subjective allegations are

accorded limited weight. The statements are inconsistent

with the objective medical evidence, [Plaintiff]’s

treatment course documents, activities of daily living,

and even [Minion’s] own affirmations to providers that

[Plaintiff’s] functional activities of daily living had

greatly increased due to her greatly reduced pain as a

result of her spinal cord stimulator trial in July 2016.

Therefore, [Minion’s] current comments from May 2018

directly contradict his own statements made around July

2016, which is much closer and material to the relevant

time period at issue in this case.

(Tr. 27 (emphasis added).)

Plaintiff objects to the ALJ’s decision to “g[i]ve ‘limited

weight’ to [Minion’s] opinion because his statement ‘directly

contradict[s]’ prior statements” (Docket Entry 10 at 15 (quoting

Tr. 27)), because the ALJ “failed to identify any such statements”

(id.). As the above-emphasized language makes clear, however, the

ALJ did identify Minion’s prior inconsistent statements – the ALJ

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expressly discussed Minion’s statement to the Duke Pain Clinic

treatment provider on July 18, 2016, that he “[wa]s in agreement

that [Plaintiff’s] mood and activity w[ere] much better” after

trial implantation of the spinal cord stimulator. (Tr. 284.) The

ALJ also correctly observed that Minion’s statement in July 2016

“[wa]s much closer and material to the relevant time period at

issue in th[e] case” than Minion’s statements in his May 2018

letter. (Tr. 27.) Indeed, as Minion made clear in his letter, he

described Plaintiff’s limitations “in her present condition” (Tr.

250 (emphasis added)), i.e., in May 2018, rather than during the

period of adjudication.

For the above-stated reasons, Plaintiff has failed to show

that the ALJ improperly evaluated the non-exertional effects of

Plaintiff’s pain, and the Court should decline to grant relief on

this assignment of error.

III. CONCLUSION

Plaintiff has not established grounds for relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

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Judgment (Docket Entry 9) be denied, that Defendant’s Motion for

Judgment on the Pleadings (Docket Entry 13) be granted, and that

judgment be entered dismissing this action.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 22, 2021

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