Opinion
Civil Action 6:20-cv-3606-MGL-KFM
09-02-2021
Amy E. Stubbs, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security,[1] Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This case is before the court for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a) (D.S.C.), concerning the disposition of Social Security cases in this District, and 28 U.S.C. § 636(b)(1)(B). The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3) of the Social Security 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 claim for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act.
A report and recommendation is being filed in this case, in which one or both parties declined to consent to disposition by the magistrate judge.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits on May 3, 2018, alleging that she became unable to work on January 1, 2013. The applications were denied initially and on reconsideration by the Social Security Administration. On December 3, 2018, the plaintiff requested a hearing. The administrative law judge (“ALJ”), before whom the plaintiff and Courtney Stiles, an impartial vocational expert (“VE”), appeared on November 14, 2019, considered the case de novo, and on December 31, 2019, found that the plaintiff was not under a disability as defined in the Social Security Act, as amended. The ALJ's finding became the final decision of the Commissioner of Social Security when the Appeals Council denied the plaintiff's request for review on September 17, 2020. The plaintiff then filed this action for judicial review.
The decision lists the application date as April 25, 2018 (see Tr. 14).
In making the determination that the plaintiff is not entitled to benefits, the Commissioner has adopted the following findings of the ALJ:
(1) The claimant meets the insured status requirements of the Social Security Act through March 31, 2015.
(2) The claimant has not engaged in substantial gainful activity since January 1, 2013, the alleged onset date (20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments: complex regional pain syndrome, obesity, degenerative disc disease of the cervical and lumbar spine, extensive fractures and degenerative changes of the feet statuspost multiple surgical repairs, anxiety, depression, and post-traumatic stress disorder (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(5) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she has been limited to standing and/or walk[ing] for a combined total of two hours in an eight-hour workday. The claimant has been able to stand for six hours in an eight-hour workday, as well as lift 10 pounds frequently and 20 pounds occasionally. She has been incapable of climbing ladders, ropes, or scaffolds and has been limited to occasionally balancing and climbing ramps and stairs. The claimant has been able to kneel, crouch, crawl, and stoop frequently. She has been able to
frequently reach overhead bilaterally. The claimant has needed [to] avoid concentrated exposure to temperature extremes and vibrations, as well as needing to avoid any exposure to workplace hazards. She has been limited to performing simple, routine, and repetitive work consistent with a reasoning level up to and including three. The claimant has been able to perform such work on a sustained basis, including for eight hours per day, five days per week, and in two-hour increments with normal breaks for an eight-hour workday. She has been limited to tolerating occasional interaction with the public and performing work involving no more than occasional changes in the work setting, decision-making, and use of judgment on the job.
(6) The claimant has no past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
(7) The claimant was born on July 27, 1994, and was 18 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
(8) The claimant has at least a high school education and is able to communicate in English (20 C.F.R. §§ 404.1564 and 416.964).
(9) Transferability of job skills is not an issue because the claimant does not have past relevant work (20 C.F.R. §§ 404.1568 and 416.968).
(10) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11) The claimant has not been under a disability, as defined in the Social Security Act, from January 1, 2013, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
The only issues before the court are whether proper legal standards were applied and whether the final decision of the Commissioner is supported by substantial evidence.
APPLICABLE LAW
Under 42 U.S.C. § 423(d)(1)(A), (d)(5) and § 1382c(a)(3)(A), (H)(i), as well as pursuant to the regulations formulated by the Commissioner, the plaintiff has the burden of proving disability, which is defined as an “inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §§ 404.1505(a), 416.905(a).
To facilitate a uniform and efficient processing of disability claims, the Social Security Act has by regulation reduced the statutory definition of “disability” to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity, (2) has a severe impairment, (3) has an impairment that meets or medically equals an impairment contained in the Listing of Impairments found at 20 C.F.R. Pt. 404, Subpt. P, App. 1, (4) can perform his past relevant work, and (5) can perform other work. Id. §§ 404.1520, 416.920. If an individual is found not disabled at any step, further inquiry is unnecessary. Id. §§ 404.1520(a)(4), 416.920(a)(4).
A claimant must make a prima facie case of disability by showing he is unable to return to his past relevant work because of his impairments. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983). Once an individual has established a prima facie case of disability, the burden shifts to the Commissioner to establish that the plaintiff can perform alternative work and that such work exists in the national economy. Id. (citing 42 U.S.C. § 423(d)(2)(A)). The Commissioner may carry this burden by obtaining testimony from a vocational expert. Id. at 191-92.
Pursuant to 42 U.S.C. § 405(g), the court may review the Commissioner's denial of benefits. However, this review is limited to considering whether the Commissioner's findings “are supported by substantial evidence and were reached through application of the correct legal standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Id. In reviewing the evidence, the court may not “undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Id. Consequently, even if the court disagrees with Commissioner's decision, the court must uphold it if it is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
ANALYSIS
The plaintiff argues that the ALJ erred by (1) failing to consider the plaintiff's complex regional pain syndrome in formulating her residual functional capacity (“RFC”) (doc. 16 at 19-22); (2) failing to properly evaluate the plaintiff's subjective complaints (id. at 22-28); and (3) discounting the medical opinion of Dr. Matthew Terzella (id. at 28-32). The Commissioner asserts that the ALJ's decision is supported by substantial evidence and should be affirmed (doc. 17 at 10-20).
Complex Regional Pain Syndrome
The plaintiff argues that the ALJ erred in failing to properly consider the plaintiff's complex regional pain syndrome (“CRPS”) in accordance with Social Security Ruling (“SSR”) 03-2p, which was promulgated “[t]o explain the policies of the Social Security Administration for developing and evaluating title II and title XVI claims for disability on the basis of . . . Complex Regional Pain Syndrome . . . .” SSR 03-2p, 2003 WL 22814447, at *1. According to SSR 03-2p, CRPS, also called reflex sympathetic dystrophy syndrome (“RSDS”), is defined as:
a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. . . . The most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is characteristic of the syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual.SSR 03-2p, 2003 WL 22814447, at *1. The diagnostic criteria for CRPS are as follows:
A diagnosis of RSDS/CRPS requires the presence of complaints of persistent, intense pain that results in impaired mobility of the affected region. The complaints of pain are associated with:
• Swelling;
• Autonomic instability-seen as changes in skin color or texture, changes in sweating (decreased or excessive sweating), skin temperature changes, or abnormal pilomotor erection (gooseflesh);
• Abnormal hair or nail growth (growth can either be too slow or too fast);
• Osteoporosis; or
• Involuntary movements of the affected region of the initial injury.Id. at *2. As to how allegations of CRPS should be evaluated by ALJs, SSR 03-2p states that such complaints are “adjudicated using the sequential evaluation process, just as for any other impairment.” Id. at *6. Based on the nature of CRPS, SSR 03-2p indicates that an ALJ “can reliably find that pain is an expected symptom in this disorder.” Id. However, there are a variety of other symptoms also associated with CRPS, and, recognizing that some of these symptoms may not be substantiated by objective evidence, SSR 03-2p instructs adjudicators to consider “the entire case record” when evaluating the intensity, persistence, and limiting effects of an individual's symptoms. Id.
As background, it is undisputed that the plaintiff has undergone over thirty surgeries to correct deformities, address injuries, and correct issues that resulted from previous surgeries. She has been diagnosed with CRPS and a number of other conditions.
In the instant case, the ALJ determined that the plaintiff's CRPS was severe (Tr. 17). After finding that none of the plaintiff's impairments, either alone or in combination, rendered her disabled based on the Listings, the ALJ considered the plaintiff's symptoms and resulting functional abilities (Tr. 21-26). The ALJ first summarized the plaintiff's testimony and previous reports regarding her condition (Tr. 22-23). He then considered the plaintiff's alleged functional limitations in conjunction with the objective evidence and reports of medical practitioners, as reported in the medical records (Tr. 23-25). The ALJ discussed the plaintiff's ability to stand and walk, her need for crutches or other assistive devices, and her range of motion, strength, sensitivity, and pain (Id.). The ALJ found the plaintiff was capable of light work but noted that her
complaints of pain with sustained standing and walking, as well as degenerative changes in her cervical and lumbar spine and her feet have been accommodated by limited [sic] the claimant to two hours of standing and/or walking, as well as reducing her exposure to postural maneuvers and environmental conditions capable of exacerbating her symptoms.(Tr. 25). Based on his review of the record, the ALJ noted that there was support for a less restrictive RFC, but, due to the plaintiff's “consistent complaints of pain, as well as the complex nature of her complex regional pain syndrome, the undersigned has accommodated all of the claimant's complaints that are consistent with the objective medical evidence of record in the residual functional capacity” (Id.)
As an initial matter, the parties agree that the ALJ was not required to specifically cite SSR 03-2p in order to properly evaluate her CRPS. However, the parties disagree as to whether the ALJ followed SSR 03-2p in evaluating the plaintiff's CRPS. The plaintiff asserts that the ALJ did not recognize and follow SSR 03-2p but, instead, relied on a lack of objective findings in evaluating her disability claim (doc. 16 at 21). However, as outlined above, and in accordance with SSR 03-2p, the ALJ followed the sequential evaluation process and analyzed the plaintiff's claim “just as for any other impairment.” See SSR 03-2p, 2003 WL 22814447, at *6. In particular, while objective evidence was part of the ALJ's analysis, to the extent such evidence did not support the plaintiff's statements, the ALJ seems to have followed SSR 03-2p by considering “the entire case record.” See id.
SSR 03-2p instructs adjudicators as follows:
[W]henever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence,
the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. This includes the medical signs and laboratory findings, the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record.Id. In considering the plaintiff's standing and walking abilities, the ALJ noted that the plaintiff's gait “ha[d] consistently been described as non-antalgic other than shortly after surgery on her feet[, ]” citing medical records to that effect:
• History and Physical/Admission orders from April 1, 2014, November 5, 2013, and October 31, 2013, by Dr. Jess Anderson, III, indicating normal gait (Tr. 353, 466, 502);
• Emergency room records from April 7, 2014, noting “[g]ait normal” in physical exam (Tr. 597);
• Emergency room records from October 26, 2013, noting “[g]ait steady” in nursing assessment and “[g]ait normal” in physical exam (Tr. 668, 669);
• Emergency room records from March 11, 2014, noting “[n]egative for gait problem” (Tr. 1032 (emphasis in original));
• Records from preoperative evaluation on April 26, 2018, with Piedmont Orthopaedic Associates noting “no pain” in gait (Tr. 1595);
• Records from Palmetto Physical Medicine, showing physical examination revealed “normal gait” on July 2, 2018 (Tr. 1674);
• Office visit notes from December 8, 2014, at Center for Pain Medicine, noting “[g]ait is intact” during physical exam (Tr. 2317);
• Notes from a physical exam during an ear, nose, and throat consultation on March 4, 2019, reporting “[g]ait steady” (Tr. 2559); and
• Notes from a new patient consultation on January 14, 2019, indicating “gait within normal limits” (Tr. 2598).The ALJ further considered physical therapy notes indicating the plaintiff could walk “[u]p to 1/4 mile without pain” as of July 16, 2018, and could “walk without assistive devices, but only for 30 minutes or less” as of June 28, 2018 (Tr. 1645, 1823). The ALJ also referenced observations by consultative examiners regarding the plaintiff's unassisted, normal gait (Tr. 23 (citing Tr. 1727, 1733-35)). In regard to the plaintiff's need for crutches, the ALJ again cited the examples of the plaintiff's non-antalgic gait in the record and further referenced the plaintiff's Adult Function Report, where she listed glasses and a walking boot as her only assistive devices (Tr. 23 (citing Tr. 292)).
In his review of the record, the ALJ recognized the plaintiff's own statements about her abilities to complete activities of daily living (see Tr. 24 (citing Tr. 287)). He also noted statements by her former employers about the plaintiff's difficulties with standing and working while seated (Tr. 24 (citing Tr. 340, 341)). The ALJ acknowledged how the record supported the plaintiff's testimony in a variety of ways, including: that she had multiple surgeries (Tr. 24 (citing Tr. 348, 391, 423, 497, 532, 699, 708, 729, 1438, 1595, 2673, 2687, 3039)); that cold exacerbated her symptoms (Tr. 24 (citing Tr. 1706)); that sustained standing and walking were painful for the plaintiff (Tr. 24 (citing Tr. 1645, 1694-97, 1737, 1823); that “[h]er left foot ha[d] experienced high levels of sensitivity” (Tr. 24 (citing Tr. 1700, 1737)); that she had also had issues with her neck and spine (Tr. 24 (citing Tr. 1662, 1767, 2493, 2524, 3045)); and that surgical intervention had not always produced positive results (Tr. 24 (citing Tr. 3020)).
Nevertheless, ultimately, the ALJ concluded that the plaintiff's “range of motion ha[d] typically been normal” (Tr. 24 (citing Tr. 448, 484, 736, 1033, 1038, 1500, 2384)). The ALJ also found that the plaintiff's strength had remained intact, citing multiple medical records to that effect (Tr. 24 (citing Tr. 353, 466, 502, 634, 1662, 1732, 1767, 2493)). He noted that “[s]ensitivity in the [plaintiff's] feet ha[d] been reduced with pain management. . . .” (Tr. 24 (citing Tr. 2493)). The ALJ specifically quoted medical records that indicated the plaintiff's pain management injections had been successful in reducing her pain (Tr. 24 (citing Tr. 2493-95, 2512, 2805, 2812)).
The undersigned is unpersuaded by the plaintiff's argument that the ALJ did not include a meaningful discussion of her CRPS. Indeed, the ALJ's discussion of the record evidence demonstrates that he followed SSR 03-2p by considering the entire record, which is sizeable, when the objective evidence did not substantiate the plaintiff's testimony regarding the intensity, persistence, and functionally limiting effects of the plaintiff's pain and other symptoms. The ALJ included restrictions in the RFC to account for the plaintiff's pain and degenerative changes in her cervical and lumbar spine and feet, and he specifically noted that he had considered the complexity of the plaintiff's CRPS in determining the RFC (Tr. 25).
Of note, because the plaintiff filed for disability for two different time periods, the ALJ indicated at the start of the decision that he had “formulated a separate residual functional capacity for each relevant period” (Tr. 14). However, the decision itself outlines only one RFC. The ALJ also found later in the decision that the plaintiff “ha[d] not demonstrated that she experienced greater limitations prior to her date last insured than after her protective filing date” (Tr. 25). Thus, it appears the ALJ considered the plaintiff's limitations to be comparable between the two periods. In any event, the plaintiff has not raised this issue in her brief.
Other than her complaint that the ALJ relied on a lack of objective medical findings to support her pain, which is belied by the decision itself, as outlined above, the plaintiff only generally argues that the ALJ did not follow SSR 03-2p in her brief. Such general arguments are unavailing in light of the wide-ranging discussion offered by the ALJ in the decision.
In her reply, the plaintiff is dismissive of the ALJ's discussion of her range of motion and limited mobility, claiming that such symptoms are not listed in those typically associated with CRPS, but SSR 03-2p specifically notes that CRPS is characterized by “intense pain that result in impaired mobility of the affected region.” SSR 03-2p, 2003 WL 22814447, at *2. Based on the undersigned's review of the record, the ALJ's discussion of the plaintiff's CRPS does not run afoul of SSR 03-2p. Accordingly, the undersigned concludes that the plaintiff has not demonstrated that the ALJ's consideration of the plaintiff's CRPS is not supported by substantial evidence or shows an incorrect application of the proper legal standards.
Subjective Complaints
The plaintiff next argues that the ALJ failed to properly consider her subjective complaints (doc. 16 at 28). The Fourth Circuit Court of Appeals has stated as follows with regard to the analysis of a claimant's subjective complaints:
[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process. First, there must be objective medical evidence showing the existence of a medical impairment(s) which results from anatomical, physiological, or psychological abnormalities and which could reasonably be expected to produce the pain or other symptoms alleged . . . .
It is only after a claimant has met her threshold obligation of showing by objective medical evidence a medical impairment reasonably likely to cause the pain claimed, that the intensity and persistence of the claimant's pain, and the extent to which it affects her ability to work, must be evaluated.Craig, 76 F.3d 585, 594-95 (citations and internal quotation marks omitted) (emphasis in original). In Hines v. Barnhart, a Fourth Circuit Court of Appeals panel held, “Having met his threshold obligation of showing by objective medical evidence a condition reasonably likely to cause the pain claimed, [the claimant] was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain [was] so continuous and/or so severe that it prevented] him from working a full eight-hour day.” 453 F.3d 559, 565 (4th Cir. 2006). However, the court in Hines also acknowledged that ‘“[objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered.'” Id. at 564. The court further acknowledged:
While objective evidence is not mandatory at the second step of the test, “[t]his is not to say, however, that objective medical evidence and other objective evidence are not crucial to evaluating the intensity and persistence of a claimant's pain and the extent to which it impairs her ability to work. They most certainly are. Although a claimant's allegations about her pain may not be discredited solely because they are not
substantiated by objective evidence of the pain itself or its severity, they need not be accepted to the extent they are inconsistent with the available evidence, including objective evidence of the underlying impairment, and the extent to which that impairment can reasonably be expected to cause the pain the claimant alleges she suffers.”Id. at 565 n.3 (quoting Craig, 76 F.3d at 595). See Johnson v. Barnhart, 434 F.3d 650, 658 (4th Cir. 2005); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (“We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled. However, we will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”).
A claimant's symptoms, including pain, are considered to diminish his capacity to work to the extent that alleged functional limitations are reasonably consistent with objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4). Furthermore, “a formalistic factor-by-factor recitation of the evidence” is unnecessary as long as the ALJ “sets forth the specific evidence he relies on” in evaluating the claimant's subjective symptoms. White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001). In making these determinations, the ALJ'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.” SSR 16-3p, 2017 WL 5180304, at *10 (applicable date March 28, 2016). The factors to be considered by an ALJ in evaluating the intensity, persistence, and limiting effects of an individual's symptoms include the following:
(1) the individual's daily activities;
(2) the location, duration, frequency, and intensity of the individual's pain or other symptoms;
(3) factors that precipitate and aggravate the symptoms;
(4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
(6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
(7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.20 C.F.R. §§ 404.1529(c), 416.929(c).
The plaintiff argues that because the ALJ's analysis of her CRPS was flawed, the evaluation of the plaintiff's subjective complaints was similarly flawed (see doc. 18 at 4). However, as discussed above, the plaintiff has failed to demonstrate that the ALJ's consideration of the plaintiff's CRPS was not supported by substantial evidence or was in contravention to SSR 03-2p. Here, the ALJ thoroughly considered the plaintiff's subjective complaints, and his analysis of the plaintiff's symptoms and functional limitations was not strictly based on objective evidence. Indeed, the ALJ's discussion incorporated many of the factors outlined in 20 C.F.R. §§ 404.1529(c), 416.929(c). Furthermore, the ALJ considered numerous medical opinions offered by treating practitioners, consultative experts, and state agency consultants, by parsing through the particulars of each opinion and comparing the opined limitations to the remainder of the record (Tr. 26-30).
There are two parts to the remainder of the plaintiff's argument that the ALJ erred in discounting her subjective complaints-first, that the ALJ did not apply the proper standard, and, second, that the ALJ's determination was not supported by substantial evidence. The plaintiff relies heavily on the recent Fourth Circuit Court of Appeals decision Arakas v. Comm'r, 983 F.3d 83 (2020), where the court found that an ALJ had erred in relying on objective evidence to discount a claimant's subjective complaints regarding symptoms of fibromyalgia. Specifically, the plaintiff cites to the statement in Arakas that “ALJs may not rely on objective medical evidence (or lack thereof)-even as just one of multiple factors-to discount a claimant's subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” Arakas, 983 F.3d at 97. Of course, the ALJ did not have the benefit of the Fourth Circuit's reasoning in Arakas when evaluating the plaintiff's claim because Arakas was decided almost a year later. Additionally, as pointed out by the Commissioner, Arakas dealt specifically with fibromyalgia, an impairment that has its own SSR outlining how such claims should be evaluated. See SSR 12-2p, 2012 WL 3104869 (July 25, 2012). There are some apparent similarities in fibromyalgia and CRPS, particularly in that fibromyalgia is “a disease whose ‘symptoms are entirely subjective,' with the exception of trigger-point evidence[, ]” Arakas, 983 F.3d at 96, and CRPS is generally complicated to diagnose and may have objective findings that are “transitory, ” SSR 03-2p, 2003 WL 22814447, at *5. However, in SSR 032p, the Social Security Administration has specifically provided for the type of evidence that should be considered when subjective complaints about pain or other symptoms attendant to CRPS are not substantiated by objective evidence, see SSR 03-2p, 2003 WL 22814447, at *6. In addition, according to the diagnostic critera of CRPS, there are some objective components of the condition. As a result, it is not clear that the Fourth Circuit would deem CRPS a disease that does not produce objective evidence, like fibromyalgia. Consequently, it is not clear that Arakas's prohibition on the consideration of objective evidence, “even as just one of multiple factors[, ]” would similarly apply to CRPS. See 983 F.3d at 97. As already discussed above, the ALJ followed SSR 03-2p, considering more than just objective evidence in analyzing the plaintiff's complaints. Based on the above, the plaintiff has not shown that the ALJ did not apply the proper legal standards in considering her subjective complaints.
As to the actual application of the legal standards, the ALJ's decision reflects a balance between the objective evidence (or lack thereof) and the plaintiff's subjective complaints, which comports with other Fourth Circuit law recited above. For example, the ALJ specifically noted that the objective evidence-i.e., “the claimant's generally normal gait, strength, and range of motion”-was “capable of supporting a less restrictive residual functional capacity than adopted in the decision” (Tr. 25). Nevertheless, the ALJ found that “in consideration of the claimant's consistent complaints of pain, as well as the complex nature of her complex regional pain syndrome, the [ALJ] has accommodated all of the claimant's complaints that are consistent with the objective medical evidence of record in the residual functional capacity” (Id.) Thus, the ALJ indicated that he crafted a more restrictive RFC, in part due to the plaintiff's subjective complaints.
The plaintiff's remaining arguments challenge the ALJ's consideration of her daily activities and her improvement as a result of pain management treatment. The plaintiff asserts that the ALJ ignored the plaintiff's testimony regarding the amount of help she received in caring for her three-year-old and performing daily activities (doc. 16 at 26). According to the plaintiff, the ALJ considered the activities the plaintiff could perform without considering the limited extent to which she could perform them (Id.). The ALJ was not required to discuss every piece of evidence-“the touchstone for determining what evidence must be addressed is whether the evidence is so material that failing to address it would prevent the court from determining if the ALJ's decision was supported by substantial evidence.” Woodbury v. Colvin, 213 F.Supp.3d 773, 778 (D.S.C. 2016) (citing Seabolt v. Barnhart, 481 F.Supp.2d 538, 548 (D.S.C. 2007)). As discussed above, the ALJ's consideration of the plaintiff's symptoms and functional limitations was reflective of the entire record and included both evidence that was supportive of and in contradiction to the plaintiff's testimony. For example, the ALJ noted the plaintiff's testimony that “her ability to perform household chores had been limited . . . .” (Tr. 24; see also Tr. 22). However, the ALJ also referenced the plaintiff's reports that she performed her own housekeeping, grooming, and hygiene, and her statement “‘that she spends most of her time playing with her son'” (Tr. 24 (quoting Tr. 1729)). Later, in evaluating the opinion of Angie W. Gilstrap, LPC, the ALJ noted that the plaintiff's ability to be the sole provider of a three-year-old child illustrated the ability to deal with stress, function independently[, ] and be reliable.” (Tr. 27). The ALJ further noted “[t]he claimant's activities of daily living like participating in a moms club, going out to get something to eat, shopping, reading, texting, and doing research on the Internet suggests greater capacity than needing extra breaks and the impairments interfering with completing an eight hour workday” (Tr. 28). The ALJ's failure to specifically reference the plaintiff's testimony that she had help from her child's father and from babysitters in caring for her child and that her other child was being raised by an aunt and uncle because she could not handle both the younger child and her three-year-old autistic child does not render the ALJ's consideration of the plaintiff's subjective complaints unsupported by substantial evidence. Additionally, the RFC accommodated the plaintiff's abilities by limiting her to two hours of combined walking and standing and six hours of sitting and by restricting altogether or limiting a number of postural maneuvers to prevent exacerbation of her issues (Tr. 21-22). Nevertheless, the ALJ noted that the plaintiff “has been able to perform such work on a sustained basis, including for eight hours per day, five days per week, and in two-hour increments with normal breaks for an eight-hour workday.” (Tr. 22).
The medical records indicate in multiple places that the plaintiff's second pregnancy was a surrogacy (see, e.g., Tr. 2428, 2549-50), but she denied that during the evidentiary hearing (Tr. 48).
The RFC appears to contain a typographical error, as it states “she has been limited to standing and/or walking for a combined total of two hours in an eight-hour workday . . .” and also states she “has been able to stand for six hours in an eight-hour workday. . . .” From context, it seems that the ALJ meant to limit the plaintiff to six hours of sitting. The plaintiff has not raised this issue in her brief.
Finally, the plaintiff asserts that the ALJ erred in relying on the fact that the plaintiff's pain and sensitivity were improved with pain management (doc. 16 at 27-28). According to the plaintiff, “Improvement is a relative concept and, by itself, does not convey whether Stubbs has recovered sufficiently to be capable of working on a sustained basis” (Id. at 28 (citing Martz v. Comm'r, Soc. Sec. Admin., 649 Fed.Appx. 948, 959-60 (11th Cir. 2016))). As set forth in detail above, the ALJ's decision was not based solely on the plaintiff's improvement. The undersigned need not recite the entirety of the evidence relied upon by the ALJ, but, suffice it to say, it was wide-ranging. The plaintiff's current arguments are an invitation to reweigh the evidence that has already been considered by the ALJ, which the court is not permitted to do. See Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (“‘In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].'” (quoting Craig, 76 F.3d at 589)).
For all of the foregoing reasons, the plaintiff has failed to demonstrate that the ALJ's consideration of her subjective complaints was either based on the application of the improper legal standard or was unsupported by substantial evidence.
Medical Opinion
The plaintiff next argues that the ALJ erred in finding the medical opinions of Dr. Matthew Terzella to be unpersuasive. For applications filed on or after March 27, 2017, such as the plaintiff's herein, a new regulatory framework for considering and articulating the value of medical opinions has been established. See 20 C.F.R. §§ 404.1520c, 416.920c; see also 82 Fed.Reg. 5844-01, 2017 WL 168819 (revisions to medical evidence rules dated Jan. 18, 2017, and effective for claims filed after Mar. 27, 2017). Most notably, the new regulations no longer require that special significance be given to opinions by a claimant's treating physician. See 20 C.F.R. §§ 404.1527, 416.927 (noting that the treating physician rule only applies to claims filed before March 27, 2017). Indeed, the ALJ is not required to defer to or give any specific weight to medical opinions. Id. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ should consider and articulate in the decision how persuasive each medical opinion is based upon the factors of: (1) supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors that tend to support or contradict a medical opinion. Id. §§ 404.1520c(b), (c); 416.920c(b), (c). Supportability and consistency are the most important of the factors for consideration, and the ALJ is required to explain how he considered the supportability and consistency factors in evaluating opinion evidence. Id. §§ 404.1520c(a), (b)(2); 416.920c(a), (b)(2). An ALJ may, but is not required to, explain how the remaining factors were considered. Id. §§ 404.1520c(b)(2), 416.920c(b)(2). In evaluating the supportability of an opinion, “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). In evaluating the consistency of an opinion, “[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).
Dr. Terzella offered his opinion about the plaintiff's limitations by way of a physician questionnaire that he filled out on November 4, 2019 (Tr. 2836-39). Dr. Terzella wrote that he had been seeing the plaintiff since August 25, 2017, and she had been diagnosed with CRPS of her left lower extremity and lumbar radiculitis (Tr. 2836). He indicated that the plaintiff's prognosis was guarded to fair, and her condition was chronic (Id.). She experienced low back pain, leg pain, left foot and ankle pain, fatigue, and temperature sensitivity (Id.). Dr. Terzella listed various clinical findings and objective signs of the plaintiff's condition, including positive straight leg raise on the left and reduced range of motion in the foot and ankle, as well as noticeable differences between the left and right foot, such as cooler skin temperature (Id.). Dr. Terzella indicated that he had been treating the plaintiff's pain with epidural steroid injections and other injections and blocks, and Dr. Loudermilk had been managing the plaintiff's pain medications (Id.). According to Dr. Terzella, the plaintiff's symptoms had lasted or could be expected to last at least twelve months, and emotional factors, such as depression, anxiety, and post-traumatic stress disorder, which had been diagnosed by psychiatry, contributed to her symptoms and functional limitations (Id.). Dr. Terzella opined that the plaintiff's pain or other symptoms would frequently interfere with the attention and concentration needed to perform even simple work tasks, and she was incapable of even low stress jobs due to her pain combined with her psychiatric diagnoses (Tr. 2837). He indicated that the plaintiff could walk one city block without pain, could sit for ten to fifteen minutes before needing to get up, and could stand for five to ten minutes before needing to walk around (Id.). Dr. Terzella stated the plaintiff could sit for less than two hours and could also stand and/or walk for less than two hours (Id.). She needed to walk every ten to fifteen minutes for no more than one minute because of her pain (Id.). Dr. Terzella opined that the plaintiff would need a job that permitted shifting positions at will, and she would need to take unscheduled breaks, at least one or two per hour for ten to fifteen minutes, during the workday (Tr. 2838). Dr. Terzella indicated that the plaintiff's legs needed to be elevated parallel to her hip for at least 50% of the workday (Id.). He further indicated that the plaintiff needed an assistive device to stand and walk, and she “has been on & off crutches & walking boot for the past several years” (Id.) According to Dr. Terzella, the plaintiff could frequently lift less than ten pounds, could rarely lift ten pounds, and could never lift twenty or more pounds (Id.). She could occasionally look down, turn her head, look up, or hold her head in a static position (Id.). She could rarely twist and could never stoop, crouch, or climb ladders or stairs (Id.). Dr. Terzella opined that the plaintiff did not have any significant limitations with reaching, handling, or fingering (Tr. 2839). Finally, he opined that she would be absent from work more than four days per month as a result of her impairments or treatment (Id.).
The ALJ found Dr. Terzella's opinion to be unpersuasive (Tr. 28-29). After summarizing the opinion, the ALJ noted that Dr. Terzella's opinion was “supported by his familiarity with the claimant as one of her healthcare providers” (Tr. 28). However, the ALJ found parts of the record to be inconsistent with Dr. Terzella's opinion. For example, the ALJ noted the plaintiff's own testimony that she could lift 10 to 15 pounds and her “generally normal strength, range of motion, and gait” (Id.) The ALJ contrasted Dr. Terzella's opinion with those by consultative examiners, who documented the plaintiff's “ability to play with her son and move about easily, in addition to the absence of evidence that the claimant has required an ambulatory assistive device other than while recovering from surgery” (Id.) The ALJ further found Dr. Trazella's opinion to be inconsistent with his own records, which noted no fatigue and documented back and joint pain but no dizziness, numbness, or weakness, and found normal reflexes, strength, tone, and sensation and no swelling (Id. (citing Tr. 2493-23, 2803-20)). The ALJ noted that other treating sources had also reported “no fatigue which again suggests the claimant is capable of performing without additional breaks or missing time from work. . . . ” (Id. (citing Tr. 2524-32, 2826-34)). As to Dr. Trazella's opinion that the plaintiff would need to elevate her legs, the ALJ noted treatment records that found no swelling or edema in the plaintiff's extremities (Id.). In addition, the ALJ cited to an abundance of objective findings from examinations that were inconsistent with both the exertional and nonexertional limitations offered by Dr. Terzella (Tr. 29). The ALJ concluded as follows:
Dr. Terzella's name is misspelled throughout the ALJ's analysis-sometimes as Trazella, sometimes as “Trussell is” and “Trussel a, ” and also as Frizzell (see Tr. 28-29). These errors appear to be due to the use of dictation software and poor editing.
The ALJ erroneously cited to Dr. Loudermilk's records when attempting to cite Dr. Terzella's own records-it appears he meant to cite 51F instead of 53F (see Tr. 28). The plaintiff has not noted this error in challenging the ALJ's consideration of Dr. Terzella's opinion.
When considering the examinations that failed to reveal any significant findings in conjunction with activities of daily living Dr. Trazella's opinion is not supported by the evidence. Particularly when considering the claimant's ability to fly and drive from California to South Carolina which requires sitting, standing, walking, postural and manipulative functions inconsistent with the opinion. Accordingly, the undersigned finds Dr. Trazella's opinion unpersuasive.(Id.).
As with her other grounds, the plaintiff argues that the ALJ erred by relying on objective evidence to evaluate Dr. Terzella's opinion (doc. 16 at 30). She further asserts that the ALJ substituted his own lay opinion for that of Dr. Terzella, and she faults the ALJ for the comparisons he drew between Dr. Terzella's opinion and the findings of other providers and consultative examiners (Id. at 30-31). As an initial matter, for the same reasons already discussed, it is not clear that the ALJ was prohibited from relying upon objective evidence in evaluating the plaintiff's claims related to her CRPS. Moreover, an examination of the ALJ's decision reveals that he complied with the requirements of 20 C.F.R. §§ 404.1520c, 416.920c by addressing both the supportability and the consistency of Dr. Terzella's opinion. He also relied upon other factors set forth by §§ 404.1520c, 416.920c by giving some credit to Dr. Terzella's opinion based on his familiarity with the plaintiff as a treating provider (Tr. 28). There is no indication that the ALJ substituted his own judgment for that of Dr. Terzella-rather, he followed the regulations by comparing Dr. Terzella's opinion to both Dr. Terzella's own treatment records and those of other providers and practitioners. The plaintiff's remaining arguments ask the court to reweigh the evidence already considered by the ALJ, which is not this court's province. In light of the foregoing, the ALJ's decision appropriately explained his evaluation of Dr. Terzella's opinion in accordance with the applicable regulations. As such, the undersigned recommends that the court find the ALJ's evaluation of Dr. Terzella's opinion is based upon substantial evidence and without legal error.
CONCLUSION AND RECOMMENDATION
Now, therefore, based on the foregoing, it is recommended that the Commissioner's decision be affirmed.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).