WOODARD v. BISIGNANO

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KATHY W., )

)

Plaintiff, )

)

v. ) 1:24CV642

)

FRANK BISIGNANO, )

Commissioner of Social Secutity,! )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kathy W. (“Plaintiff”) brought this action pursuant to Sections 205(g) and

1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and

1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Security

denying her claims for Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”) under, respectively, Titles I and XVI of the Act. The parties have filed cross-

motions for judgment, and the administrative record has been certified to the Court for review.

I. PROCEDURAL HISTORY

Plaintiff protectively filed applications for DIB and SSI on January 11, 2023, alleging a

disability onset date of December 7, 2022 in both applications. (Ir. at 11, 267-75.)* Her

applications were denied initially (T'r. at 89-106, 123-32) and upon reconsideration (Tr. at 107-

1 The United States Senate confirmed Frank Bisignano as the Commissioner of Social Security on May 6, 2025,

and he took the oath of office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedute,

Frank Bisignano should be substituted for Leland Dudek as the Defendant tn this suit. Neither the Court nor

the parties need take any further action to continue this suit by reason of the last sentence of section 205(g) of

the Social Security Act, 42 U.S.C. § 405(g).

2 Transcript citations refer to the Sealed Administrative Record [Doc. #7].

22, 140-47). Thereafter, Plaintiff requested an administrative hearing de novo before an

Administrative Law Judge (“ALJ”). (Tr. at. 171-72.) On December 11, 2023, Plaintiff, along

with her attorney, attended the subsequent telephonic hearing, at which both Plaintiff and an

impartial vocational expert testified. (Tr. at 11, 44-88.) Following this heating, the ALJ

concluded that Plaintiff was not disabled within the meaning of the Act (Ir. at 24), and on

June 5, 2024, the Appeals Council denied Plaintiff's request for review of the decision, thereby

making the ALJ’s conclusion the Commissionet’s final decision for purposes of judicial review

(I'r. at 1-7).

Il. LEGAL STANDARD

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). “The courts are not to try the 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

AL) if they are supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (citation and

internal quotation 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. 1993)

(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 citations 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 court should not undertake to te-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL}].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

AL)’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).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). 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

petiod of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).3

3 “The Social Security Act comprises two disability benefits programs. The Social Secutity Disability Insurance

Program (SSDJ, established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the program while employed. The Supplemental Secutity Income

Program (SSI), established by Title XVI of the Act as amended, 42 US.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CFR. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

requitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation 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 the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant cleats steps one and two,

but falters at step three, ie., “[i]fa claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the clatmant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requites the ALJ to assess whether, based on

4 “REC 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 impaitments and any related symptoms (¢g., patn).”

Hines, 453 F.3d at 562-63.

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, which “requires the [Government] to prove that

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide

“whether the claimant is able to perform other work considering both [the clatmant’s 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 catty 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.

DISCUSSION

In the present case, the AL] found that Plaintiff had not engaged tn “substantial gainful

activity” since December 7, 2022, her alleged disability onset date. The AL] therefore

concluded that Plaintiff met her burden at step one of the sequential evaluation process. (I'rt.

at 13.) At step two, the AL] further determined that Plaintiff had the following severe

impairments:

diffuse large B-cell non-Hodgkin’s lymphoma, unspecified body region;

peripheral neuropathy residual of chemotherapy; deep vein thrombosis (DVT);

and syncope episodes or seizures|.|

(Ir. at 13.) The ALJ found at step three that none of these impairments, singly or in

combination, met or equaled a disability listing. (Tr. at 16.) The ALJ therefore assessed

Plaintiffs RFC and determined that she could perform a work at the medium exertional level,

but with the following, non-exertional limitations:

[Plaintiff] can occasionally climb ladders/topes/scaffolds; frequently but not

constantly handle, finger, and feel; and she must avoid concentrated or frequent

exposute to hazards of unprotected heights, moving machinery, or large open

bodies of water.

(Tr. at 16-17.) Based on this determination and the testimony of a vocational expert, the AL]

determined at step four of the analysis that Plaintiffs past relevant work as a personnel

recruiter and residential leasing agent did “not require the performance of work-related

activities precluded by” the above RFC. (Ir. at 22.) Therefore, the ALJ concluded that

Plaintiff was not disabled under the Act. (Tr. at 24.)

Plaintiff now argues that, in assessing her RFC, the AL] “failed to include significant

limitations resulting from [Plaintiffs] impairments and failed to provide an adequate

discussion rejecting those limitations.” (Pl.’s Br. [Doc. #10] at 1.) Specifically, Plaintiff

contends that the ALJ failed to properly consider the impacts of Plaintiffs neuropathy and

fatigue when formulating her RFC. (Pl.’s Br. at 7.)

As Social Security Ruling (“SSR”) 96-8p instructs, “[t]he RFC assessment must first

identify the individual’s functional limitations or restrictions and assess his ot her work-related

abilities on a function-by-function basis,” including the functions listed in the regulations.

Policy Interpretation Ruling Titles I] and XVI: Assessing Residual Functional Capacity in

Initial Claims, SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996) (“SSR 96-8p”). “Only after

such a function-by-function analysis may an AL] express RFC in terms of the exertional levels

of work.” Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016) (internal quotations and

citations omitted). Further, the “RFC assessment must include a narrative discussion

describing how the evidence supports each conclusion, citing specific medical facts (e.g.,

laboratory findings) and nonmedical evidence (e.g., daily activities, obsetvations).” SSR 96-

8p, 1996 WL 374184, at *7. An AL] must “both identify evidence that supports his conclusion

and build an accurate and logical bridge from [that] evidence to his conclusion.” Woods v.

Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (emphasis omitted). Remand may be appropriate

“where an AL] fails to assess a claimant’s capacity to perform relevant functions, despite

contradictory evidence in the record, or where other inadequacies in the AL]’s analysis

frustrate meaningful review.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting

Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (per curiam)). The court in Mascio

concluded that remand was appropriate because it was “left to guess about how the ALJ

attived at his conclusions on [the claimant’s] ability to perform relevant functions” despite

conflicting evidence regarding the claimant’s RFC that the ALJ did not address. Id. at 637.

Here, Plaintiff challenges the AL]’s analysis of evidence relating to Plaintiffs fatigue

and neuropathy and, more generally, Plaintiffs ability to perform medium exertional level

work with frequent handling and fingering, in light of her peripheral neuropathy as a result of

chemotherapy. (PI.’s Br. at 7-9.) Plaintiff further argues that the AL]’s alleged errors “cannot

be considered harmless”:

[T]he [vocational expert] testified that ... a reduction to occasional handling

and fingering, limitations that would logically flow from [Plaintiffs] severe

neuropathy, with her other limitations[,] would be work preclusive. [(T'r. at 85.)]

Here, the AL] did not build a logical bridge from the evidence to her finding

that [Plaintiff] could perform medium level work which requires lifting 25 Ibs.

frequently and 50 lbs. occasionally, walking on and off for a total of 6 hours in

and 8-hout workday. See SSR 83-10. The record supports that [Plaintiffs]

impairments preclude the ability to perform medium work on a regular and

sustained basis. The AL]’s decision is not supported by substantial evidence

and[,| therefore, remand is required.

(Pl.’s Br. at 9-10.)

As recounted in the administrative decision, Plaintiff testified during her hearing that

she is unable to work due to fatigue, neuropathy in her feet and fingertips

stemming from chemotherapy treatment, seizures, and pain in her extremities.

She described undergoing treatment, including chemotherapy and radiation, for

lymphoma. She noted that she completed treatment in October [2023]. She

explained that during treatment she felt weak, nauseous, and lost weight. She

testified that she continues to expetience memory issues, bone pain, and

neuropathic tingling and pain. She indicated that she has difficulty standing and

walking for extended periods. She noted that she has a walker and can walk for

shott periods without it. She stated that she takes pain medication prescribed

by palliative care providers. She reported that during the period in question she

has not driv[en,] either because her neurologist instructed her not to or because

she has not had a vehicle. She explained that she live[d] with her adult son and

during the day she trie[d] to do small household chores but must stop frequently

to take breaks. She noted that her son helps her with laundry, grocery shopping,

and cooking.

(Tr. at 17.) The AL) acknowledged that Plaintiff experienced limitations in her ability to

perform basic work activities due to her impaitments, including peripheral neuropathy and

lymphoma, which were included among Plaintiffs severe impairments at step two of the

sequential analysis. (T'r. at 13, 17.) However, the ALJ ultimately found that [Plaintiffs]

“statements about the intensity, persistence, and limiting effects of her symptoms” were

unsupported “because her treatment notes do not reflect the degree of signs, symptoms, and

dysfunction that would be expected were [Plaintiff] as limited as alleged.” (I'r. at 18.) Plaintiff

challenges this finding and Plaintiffs analysis of her symptoms.

Under the applicable regulations, the AL]’s decision must “contain specific reasons for

the weight given to the individual’s symptoms, be consistent with and supported by the

evidence, and be clearly articulated so the individual and any subsequent reviewer can assess

how the adjudicator evaluated the individual’s symptoms.” ‘Titles I] and XVI: Evaluation of

Symptoms in Disability Claims, SSR 16-3p, 2017 WL 5180304, at *10 (Oct. 25, 2017) (“SSR

16-3p”); see also 20 C.F.R. § 404.1529. Moreover, in Arakas v. Commissioner of Social

Security, 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit clarified the procedure an AL] must

follow when assessing a clatmant’s statements:

When evaluating a claimant’s symptoms, ALJs must use the two-step

framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029

(Mar. 16, 2016). First, the AL] must determine whether objective medical

evidence presents a “medically determinable impairment” that could reasonably

be expected to produce the claimant’s alleged symptoms. 20 CFR. §

404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.

Second, after finding a medically determinable impairment, the AL] must assess

the intensity and persistence of the alleged symptoms to determine how they

affect the claimant’s ability to work and whether the claimant is disabled. See 20

C.F.R. § 404.1529(c¢); SSR 16-3p, 2016 WL 1119029, at *4. At this step,

objective evidence is zof required to find the claimant disabled. SSR 16-3p, 2016

WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always

be measuted objectively through clinical or laboratory diagnostic

techniques.” Id. at *4. Thus, the AL] must consider the entire case record and

may “not disregard an individual’s statements about the intensity, persistence,

and limiting effects of symptoms solely because the objective medical evidence

does not substantiate” them. Id. at *5.

Arakas, 983 F.3d at 95-96; see also Hines, 453 F.3d at 564-65 (explaining that, “[b]ecause pain

is not readily susceptible of objective proof... the absence of objective medical evidence of

the intensity, severity, degree[,] or functional effect of pain 1s not determinative” (emphasis

omitted)). The Fourth Circuit later affirmed and expanded its previous holdings when issuing

Shelley C. v. Commissioner of Social Security Administration, 61 F.4th 341, 361-62 (4th Cir.

2023). In Shelley C., the Court explained that some conditions do not manifest themselves in

objective signs and symptoms. “[Blecause of the unique and subjective nature of [such

impairments], subjective statements from claimants [in these cases] ‘should be treated as

evidence substantiating the claimant’s impairment.” Id. (quoting Arakas, 983 F.3d at 97-98).

The ALJ’s error in this case is most apparent in her analysis of Plaintiffs peripheral

neutopathy and its effects. The ALJ noted that Plaintiffs medical records reflect peripheral

neuropathy due to chemotherapy beginning in May and June 2023. (Tr. at 18, 1053, 1081,

1541-42.) The AL] then analyzed the evidence regarding Plaintiffs peripheral neuropathy as

follows:

The claimant reported to Dr. Parikh that she was experiencing numbness and

tingling of her hands and feet that made it difficult to use her hands or walk.

However, electromyography (EMG) and nerve conduction study (NCS) results

were normal. Dr. Parikh’s clinic notes do not include physical exam findings

telated to these complaints to conclude as she does in a medical source

statement, detailed below, that the claimant has a functional loss of fine or gross

motor skills due to neuropathy from chemotherapy. Dr. Parikh noted in an

email with the claimant on June 20, 2023, that the claimant likely ha[s] small

fiber neuropathy, there is no evidence of neuropathy on EMG or NCS testing

ot physical exam results to support this conclusion (Exhibits 10F; 11F).

Additionally, at a September 9, 2023, clinic visit the claimant reported that she

had no serious difficulty walking or climbing stairs (Exhibit 21F p. 28). The

medical evidence of record does not indicate that the claimant ever underwent

a biopsy to confirm a diagnosis of small fiber neuropathy and Dr. Parikh seems

to be basing her conclusion on the claimant’s subjective reports. However, a

diagnosis of peripheral neuropathy due to chemotherapy was properly

diagnosed through physical exam findings by primary care providers of

decreased sensation to light touch of her hands and feet and this is adequately

addressed by the residual functional limitation of frequent but not constant

handling, finger, or feeling as well as occasional climbing of

laddets/tropes/scaffolds and the avoidance of concentrated or frequent

exposure to hazards of unprotected heights, moving machinery, or large open

bodies of water.

(Tr. at 19-20.) Dr. Parikh is Plaintiffs neurologist at Duke Hospital and is a professor at Duke

University Medical Center. In her statement, Dr. Parikh explained that:

I am a board-certified neurologist and epileptologist. Kathy Woodard has been

my patient since 7/3/23 at Duke University Department of Neurology.

I treat Kathy primarily for her epilepsy which was a result of her tumor

primarily. However, during my evaluation for Kathy I have also noted that she

has clinical signs and symptoms of painful small fiber neuropathy. This is likely

10

a side effect of the chemotherapy that she is receiving. Kathy has b-cell

lymphoma that is treated by my colleagues in oncology.

Kathy experiences severe pain in her hands and in her feet. I have observed the

redness and swelling in her fingers and feet which is accompanied by numbness.

She is unable to drive as a result of this and her seizure. Painful small fiber

neutopathy makes it hard for Kathy to be able to manipulate objects with her

fingers - such as opening cans, typing, buttoning etc. She is unable to stand for

long periods of time. Kathy finds it difficult to walk for long periods of time

because of pain in her feet and she uses a walker to help her to get around.

(Ir. at 2121.) In evaluating this evidence, the AL] again undertook a similar analysis,

and found that:

This medical source statement is not persuasive as it does not delineate any

physical findings or treatment course other than a prescription for Lamotrigine

that was nevet completely titrated to therapeutic levels prior to authorization

ended on October 25, 2023, with 11 refills remaining. Additionally, Dr. Parikh

only saw the claimant once prior to giving this interview. The evidence of record

does not include therapeutic serum labs, or adjust of prescription use or dose.

There is no foundation for the manipulative or exertional limitations offered

other than the claimant’s subjective complaints of pain. EMG/NCS tesults

wete normal and there are no deficits per various physical exam results by

emergency room providers and other medical providers.

(Tr. at 27.) The ALJ thus discounts Plaintiffs pain and other symptoms from her peripheral

neutopathy because (1) the “diagnosis of peripheral neuropathy due to chemotherapy . . . by

ptimaty cate providers” is more supported than Dr. Parikh’s diagnosis of “small fiber

neutopathy,” (2) EMG and NCS testing was normal; (3) Dr. Parikh only saw Plaintiff once

ptior to giving her opinion and her clinic notes do not support her conclusions, (4) Plaintiff

did not take medication prescribed by Dr. Parikh, and other treatment records and emergency

reports reflect “no deficits,” and (5) Plaintiffs limitations and Dr. Parikh’s opinion are based

only on Plaintiffs subjective reports. (Tr. at 20-22). However, as to each of these lines of

reasoning, the AL]’s analysis is not supported by the evidence in the record.

11

First, the ALJ concludes that the “diagnosis of peripheral neuropathy due to

chemotherapy . . . by primary cate providers” is more supported than Dr. Parikh’s diagnosis

of “small fiber neuropathy.” (Tr. at 20.) However, nowhere in the ALJ’s decision does she

recognize that small fiber neuropathy is not a sepatate diagnosis, but rather a specific type of

petipheral neuropathy.5 Thus, Dr. Parikh’s diagnosis of small fiber neuropathy is completely

consistent with the more general diagnosis of peripheral neuropathy.°

Second, and telatedly, the AL] relied repeatedly on the fact that Plaintiffs EMG and

NCS tests wete normal. Electromyography (EMG) and Nerve Conduction Studies (NCS) are

tests to measute the electrical activity of muscles and nerves. While they are often used to

detect and measute the severity of peripheral neuropathy, these tests can only pick up signals

from /arge diameter nerve fibers. In conttast, signals from sya// diameter nerve fibers do not

show up on EMG/NCS tests.’ Dr. Parikh explained this to Plaintiff in texts explaining that

Plaintiff likely has small fiber neuropathy, which “does not show up on an EMG,” so it is

5 See generally Neuropathy Overview, available at http://neuropathycommons.org/neuropathy/neuropathy-

overview; Small Fiber Neuropathy, available at

□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

%20with, □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ functions; Small fiber neuropathy, available at

https://medlineplus.gov/ genetics /condition/small-fiber-neuropathy/.

6 As noted above, Dr. Parikh is Plaintiff's treating neurologist, is an attending physician at Duke Hospital, and

is a Professor of Neurology at Duke University. The ALJ nevertheless dismissed Dr. Patikh’s diagnosis, and

relied on her own lay analysis of the medical records. See Arakas, 983 F.3d at 108 (“T]he AL] improperly

substituted his own opinion for Dr. Harper's. An ALJ may not substitute his own lay opinion for a medical

expert's when evaluating the significance of clinical findings.”’);

7 Damage to these smaller sensory nerves may result in tingling, numbness, burning pain, or other sensory

problems, mainly appearing in the feet and hands. See infra note 5.

12

“not unusual that the EMG is normal.” (It. at 1268-69.) Thus, the normal EMG and NCS

tests do not undermine or otherwise speak to Plaintiffs small fiber neuropathy.®

Third, the AL] states that Dr. Parikh only saw Plaintiff once and that her examinations

did not support her opinion. However, the record reflects that Dr. Parikh saw Plaintiff three

times ptiot to giving her opinion letter: on July 3, 2023, August 24, 2023, and December 7,

2023. In addition, Dr. Parikh’s clinic notes ate not included in the record, so it is unclear how

the AL] found that Dr. Parikh’s opinion was not supported by her exams, and it is unclear

what records the AL] teferred to or why the record was not further developed before

dismissirig Dr. Patikh’s opinion. Further, in her opinion letter, Dr. Parikh specifically noted

that she had observed redness and swelling in Plaintiffs fingers and feet which was

accompanied by numbness, thus reflecting examinations that supported her conclusions. (Tr.

at 2121.) Plaintiffs treating oncologist, Dr. Kirby, likewise observed redness and peeling skin

on Plaintiffs feet when she diagnosed peripheral neuropathy due to chemotherapy. (Tr. at

1081-82, 1276-84.)?

Fourth, the AL] stated that Plaintiff did not take medication prescribed by Dr. Parikh,

and that other providers noted “no deficits.”!° However, Dr. Parikh noted in her opinion

8 Dr. Parikh also ordered an EEG after Plaintiffs visit in August 2025, and that EEG was “abnormal due to:

Background slowing theta-delta range,” further reflecting “Clinical correlation: Diffuse slowing present in the

recording is consistent with a generalized brain dysfunction.” (Tr. at 1835.)

9 Dr. Kirby later submitted a letter, reviewed by the Appeals Council, noting that “[s]ide effects from

chemotherapy, such as peripheral neuropathy in hands and feet, are debilitating side effects that can affect

quality of life.” (Tr. at 43.)

10 The AL] specifically noted no treatment by Dr. Parikh “other than a prescription for Lamotrigine that was

never completely titrated to therapeutic levels prior to authorization ended on October 25, 2023, with 11 refills

remaining.” (Ir. at 22.) However, as to this reference, the records also reflect that Plaintiff completed the

titration, and was still on Lamotrigine during her hospitalizations in July and September 2023, and while she

13

letter that Plaintiffs pain as a result of the small fiber neuropathy was addressed by her

colleagues in the Palliative Care department. (Ir. at 2121.) With respect to the other

treatment records, Plaintiffs pain, particularly in her extremities, remained her primary

complaint throughout the majority of the time period at issue. For example, on June 30, 2023,

Plaintiff presented to the emergency department with multiple symptoms, including “severe

pain/bone pain, neuropathy of the finger tips and feet, swelling in fingers, [and] severe

fatigue.” (Tr. at 1386, 1387.) On July 26, 2023, she again reported “chronic painful neuropathy

in the bilateral arms and legs” while in inpatient care for cancer treatment. (Tr. at 1443.) Five

days later, during the same hospital stay,

[P]laintiff [r]eport[ed] neuropathic pain since admission as well as generalized

body pain which goes from “head to toe.” She takes minimal medications at

home for pain. She states that she occasionally will take a percocet at home.

She requested IV morphine while admitted as this is the only time that she

receives telief from her pain. [Plaintiffs providers c]onsulted palliative care to

determine [a] feasible plan for outpatient [care] as her pain [was] uncontrolled

when at home.

(Tr. at 1409.) During Plaintiffs initial consultation with palliative care, it was again noted that

Plaintiff had

neuropathic pain which [was] worst in her hands and arms. She sometimes has

associated cramping [and] feels clumsy and prone to drop things. [She a]lso has

numbness and neuropathic discomfort in [her] feet and legs but [her] upper

extremities are worst. [Her p]ain [is] worse at night.

(Tr. at 1444.) Plaintiffs medication plan upon discharge included Gabapentin for neuropathic

pain, 600 mg twice during the day and 1200 mg at night; Duloxetine 60 mg to further treat her

chemothetapy-included peripheral neuropathy and depression; and 5-10 mg of liquid

did stop taking it for a time, it was re-started in October 2023. (See, e.g., Tr. at 1687-89, 1698-99, 1701-02,

1404-05, 1409-10, 1502, 1965, 1973, 1982-83, 1985-86, 2091, 2106.)

14

motphine as needed for pain. (Tr. at 1409, 1416, 1426, 1432, 1437, 1443.) During this

treatment, it was noted that Plaintiff had been seen by neurology on July 3, 2023. Significantly,

at no point did any provider question Plaintiffs reports of neuropathic pain, its intensity, or

its effects on Plaintiffs functioning.!! In addition, subsequent hospital records from August

2023 reflect uncontrolled neuropathic pain requiring intensive medication management, and

hospital records from September 2023 likewise reflect intense pain management, with her

neuropathic pain complicating her treatment and requiring extensive medication adjustments.

(Tr. at 1687, 1689-90, 1697-98, 1773, 1964-65, 1972, 1978-79, 1987, 1990, 2000.)!2 These

hospital records also reflect mobility issues, including walking assisted and use of a rolling

walker in the hospital and a “4WW” walker at home. (Tr. at 1692, 1695, 1703-04, 1444.) These

treatment records reflect that Plaintiffs ongoing pain was mostly related to her neuropathy.

(Tr. at 1724.) Later treatment records from December 2023 reflect that she continued to

suffer “crushing hand|] pain.” (Tr. at 2117.) None of this information—or any other evidence

related to Plaintiff's pain—was addressed in the AL]’s symptom analysis or elsewhere in her

decision, other than to summarily dismiss it as “subjective.”

Finally, to the extent the AL] dismissed Dr. Parikh’s opinion and Plaintiff's pain

because it was subjective, that analysis is not consistent with the proper application of the 2-

11 To the extent Defendant may argue that Plaintiff's pain was adequately addressed by medication and other

treatment, the AL] did not raise this justification in her decision. Moreover, the record from June 2023 forward

strongly suggests that Plaintiffs pain was not well-controlled during this time, despite her increased

medications. (See Tr. at 1451, 1454, 1720, 1724, 1978, 1986, 2000, 2003, 2011, 2117.)

2 The ALJ also failed to address any potentially limiting side effects Plaintiff experienced from her extensive

medications, which included opioids. Notably, PlaintifPs providers decteased her gabapentin in September

2023 in an effort to “improve het confusion and ‘mental fog’” (Tr. at 1974) and discontinued her morphine

due to digestive issues (Tr. at 1979).

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step symptom analysis requited by the regulations, as set out in Arakas. Specifically, at the

first step of the subjective symptom analysis, the ALJ accepted Plaintiffs diagnosis of

peripheral neuropathy due to chemotherapy as a condition that could reasonably be expected

to produce her alleged symptoms. At this step, the ALJ relied on the consistent peripheral

neutopathy diagnosis by all of Plaintiffs providers and Plaintiffs demonstrated decreased

sensation in her hands and feet. (See Tr. at 20.) Having made this determination, the AL] was

then required, at the second step of the subjective statement analysis, to “consider the entire

case tecord” when assessing the intensity and persistence of Plaintiff's symptoms. Arakas, 983

F.3d at 96. However, at no point did the ALJ even attempt to account for Plaintiffs pain

allegations, which Plaintiff consistently cited as the main symptom of her peripheral

neutopathy. Rather, it appears that the ALJ summarily discounted these symptoms, and the

medical opinion evidence based upon them, simply because the complaints were “subjective.”

(Tr. at 20, 22.) In doing so, the ALJ improperly “disregard[ed] [Plaintiffs] statements about

the intensity, persistence, and limiting effects of symptoms solely because the objective

medical evidence does not substantiate them.” Arakas, 983 F.3d at 95 (citation omitted).

Because the AL]’s erred in both (1) considering the impact of Plaintiff's pain and other

neutopathy symptoms on her ability to work and (2) connecting the neuropathy limitations

set out in the RFC with the evidence as a whole, Plaintiff's claims require remand so that the

ALJ may adequately address these issues in the first instance. To the extent that the AL] also

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failed to properly consider the effects of Plaintiffs fatigue on her RFC, this matter can also be

addressed on remand as well."

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding

no disability be REVERSED, that Defendant’s Dispositive Brief [Doc. #11] be DENIED,

that Plaintiffs Dispositive Brief [Doc. #10] be GRANTED, and that this action be

REMANDED for further consideration in accordance with the directives set out herein.

This, the 19 day of August, 2025.

h hn Peake

nited States Magistrate Judge

13 Notably, the AL] also refused the request by PlaintifPs counsel for review by a Medical Expert. (Tr. at 478-

79.) As acknowledged by the ALJ, the state medical examiners did not have a significant portion of the medical

evidence, including any of the evidence from Dr. Parikh, because it came after their review, and it appears that

there are issues regarding the Listings and Plaintiffs subsequent medical records that were never reviewed by a

medical expert. See Kee v. Berryhill, No. 1:15CV1039, 2017 WL 788306 at *6 and n.7 (M.D.N.C. Mar. 1, 2017)

(remanding where Plaintiff's treating physicians were “the only medical sources to have opined on Plaintiff's

condition after her second fusion surgery” and “the AL] did not obtain the assistance of a medical expert to

review the additional records”); Shaw v. Berryhill, No. 1:17CV91, 2018 WL 1322159 at *8 (M.D.N.C. Mar. 14,

2018) (temanding where “[t]he AL] did not enlist the assistance of a medical expert to review the more recent

evidence or provide an opinion regarding the extent of Plaintiff's mental impairments for the later period, and

as a result, no medical professional has reviewed the records or provided an opinion for the time period”). This

issue can also be addressed further on remand.

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