DAWLING v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

SCOTT M. DAWLING, )

)

Plaintiff, )

)

v. ) 1:19CV171

)

ANDREW M. SAUL, )

Commissioner of Social )

Security,1 )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Scott M. Dawling, brought this action pro se

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 claims for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket

Entry 2.) Defendant has filed the certified administrative record

(Docket Entry 14 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 16, 17; see also Docket Entry 18

(Defendant’s Memorandum), Docket Entry 20 (Plaintiff’s Reply)).

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

Defendant.

1 The United States Senate confirmed Andrew M. Saul as the Commissioner of

Social Security on June 4, 2019, and he took the oath of office on June 17, 2019.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul

is substituted for Nancy A. Berryhill as the Defendant in 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).

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging a disability onset

date of July 20, 2011. (Tr. 273-84.) Upon denial of those

applications initially (Tr. 81-104, 156-60) and on reconsideration

(Tr. 105-32, 161-70, 174-82), Plaintiff requested a hearing de novo

before an Administrative Law Judge (“ALJ”) (Tr. 183-84).

Plaintiff, his attorney, and a vocational expert (“VE”) attended

the hearing (Tr. 55-80), at which Plaintiff amended his disability

onset date to July 21, 2015, the day after an ALJ’s decision

denying Plaintiff’s prior claims for DIB and SSI (see Tr. 41, 62).

The ALJ subsequently ruled that Plaintiff did not qualify as

disabled under the Act. (Tr. 38-50). The Appeals Council

thereafter denied Plaintiff’s request for review (Tr. 1-7, 272),

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] meets the insured status requirements of

the . . . Act through December 31, 2016.

2. [Plaintiff] has not engaged in substantial gainful

activity since July 21, 2015[,] the amended alleged onset

date.

3. [Plaintiff] has the following severe impairments:

history of ankle fractures and inflammatory arthritis.

. . .

2

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform medium work . . . . He can

frequently perform crouching[.]

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. Considering [Plaintiff’s] age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [Plaintiff] can perform.

. . .

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from July 21, 2015, through the

date of this decision.

(Tr. 43-49 (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. [SSI] . . . 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 residual functional capacity

(‘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

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.

7

available in the community,” the claimant qualifies as disabled.

Hines, 453 F.3d at 567.5

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “all the pages of medical records show how long [Plaintiff

has] been out of work [and] show[] how long [Plaintiff has] been

under [a] doctor[’s] care,” Plaintiff “can’t make a living in and

out of the doctor[’s] office,” and “[Plaintiff is] on Humira that

sta[r]ted at one shot every two week[s] [and] now [takes] one shot

a week showing [his] problem has increase[d]” (Docket Entry 16 at

1; see also Docket Entry 20 at 1); and

2) in defending the ALJ’s denial of benefits, “[Defendant]

only discuss[ed] doctors that had no re[a]l deal of [Plaintiff’s]

medical condition . . . and did not mention the doctor that found

the problem that [Plaintiff] was dealing with” or other doctors

such as “[Dr. Robb A.] Mothershed,” “Dr. [Angel A.] Brown,” “Dr.

[Aldona] Ziolkowska,” “Dr. [Rebecca B.] Everly,” or “Dr. [Julio]

Reyes” (Docket Entry 20 at 1).

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

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

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 18 at 7-13.)

1. Medical Evidence

Plaintiff first contends that “all the pages of medical

records show how long [Plaintiff has] been out of work [and] show[]

how long [Plaintiff has] been under [a] doctor[’s] care,” that

Plaintiff “can’t make a living in and out of the doctor[’s]

office,” and that “[Plaintiff is] on Humira that sta[r]ted at one

shot every two week[s] [and] now [takes] one shot a week showing

[his] problem has increase[d].” (Docket Entry 16 at 1; see also

Docket Entry 20 at 1.) That argument does not entitle Plaintiff to

relief.

As an initial matter, Plaintiff neither specifically

identified any of the “medical records” which he believes “show how

long [he has] been out of work [and] . . . under [a] doctor[’s]

care,” nor assigned any particular error to the ALJ’s decision.

(Docket Entry 16 at 1.) Under such circumstances, the Court can

undertake only a generalized determination of whether the ALJ

applied the correct legal standards and supported his findings with

substantial evidence. See Fitton v. U.S. Comm’r Soc. Sec. Admin.,

No. CV 6:15-02894, 2017 WL 129925, at *5 (W.D. La. Jan. 12, 2017)

(unpublished) (finding that pro se plaintiff’s argument “that the

ALJ erred in reaching the ultimate conclusion that the [plaintiff]

[wa]s not disabled and erred in not ordering a period of

9

disability[ wa]s too general to be considered by the [c]ourt” and

proceeding to analyze whether “substantial evidence support[ed] the

ALJ’s disability determination” (bold font omitted and standard

capitalization applied)).

More significantly, however, Plaintiff’s argument

misunderstands the SSA’s definition of disability. Plaintiff

cannot establish “disability” under the Act merely by establishing

that he has not held a job or has remained under a doctor’s care

for a length of time. See 42 U.S.C. § 1382c(a)(3)(B) (“[A]n

individual shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such severity

that he is not only unable to do his previous work but cannot,

considering his age, education, and work experience, engage in any

other kind of substantial gainful work which exists [in significant

numbers] in the national economy, regardless of whether such work

exists in the immediate area in which he lives, or whether a

specific job vacancy exists for him, or whether he would be hired

if he applied for work.”); see also 20 C.F.R. §§ 404.1566, 416.966.

Rather, Plaintiff must show 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 twelve months.” 42 U.S.C.

§ 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).

10

Here, a review of the ALJ’s decision shows that he applied the

correct legal standards and supported his factual findings with

substantial evidence.

At step two of the SEP, the ALJ found, in accordance with the

regulations, see 20 C.F.R. §§ 404.1522, 416.922, that Plaintiff’s

history of ankle fractures and inflammatory arthritis qualified as

severe impairments because they significantly limited Plaintiff’s

ability to perform basic work activities. (See Tr. 43.) In

contrast, the ALJ concluded that Plaintiff’s hidradenitis

suppurtiva, left knee osteoarthritis, left wrist osteoarthritis,

low back pain, cervical radiculopathy, hyperlipidemia, tinnitus,

headaches, anxiety disorder, affective disorder, chronic pain

syndrome, reflex sympathetic dystrophy of the right lower

extremity, neuritis, neuropathy, lumbar degenerative disc disease,

and status post right foot surgery constituted non-severe

impairments, because they either “show[ed] . . . nothing more than

mild degenerative changes,” “prove[d] stable with medications,”

“were [] acute and successfully treated in the short term, or else

have not been particularly symptomatic during the relevant period,

requiring little more than routine and/or conservative management.”

(Tr. 44 (citing Tr. 363, 366, 415, 479-81, 494, 502, 541, 596, 654,

670-87).) With regard to Plaintiff’s mental impairments in

particular, the ALJ noted that he “assigned great weight to the

opinions of [the state agency psychological consultants] who opined

11

that [Plaintiff’s] treatment records have failed to support he

presence of any limitations resulting from mental impairment.”

(Tr. 45 (citing Tr. 85, 97, 110-11, 124-25).) In light of the

foregoing, the Court should conclude that the ALJ relied upon the

proper legal standards and provided substantial evidence to support

his step two findings.

Proceeding on to step three, the ALJ specifically considered

Listings 1.02 (“Major dysfunction of a joint(s) (due to any

cause)”), 1.06 (“Fracture of the femur, tibia, pelvis, or one or

more of the tarsal bones”), and 14.09 (“Inflammatory arthritis”),

see 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §$§ 1.02, 1.06, 14.09.

(See Tr. 45.)° The ALJ found that Plaintiff’s history of ankle

fractures did not meet or equal the criteria of Listings 1.02 and

1.06, because Plaintiff had not shown an inability to ambulate

effectively as required by both Listings. (Id.)’ Concerning

° “The [L]istings set out at 20 CFR [P]t. 404, [S]ubpt. P, App[’x] 1, are

descriptions of various physical and mental illnesses and abnormalities, most of

which are categorized by the body system they affect. Each impairment is defined

in terms of several specific medical signs, symptoms, or laboratory test

results.” Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote and

parentheticals omitted). “In order to satisfy a listing and qualify for

benefits, a person must meet all of the medical criteria in a particular

[L]isting.” Bennett, 917 F.2d at 160 (citing Zebley, 493 U.S. at 530, and 20

C.F.R. § 404.1526(a)); see also Zebley, 493 U.S. at 530 (“An impairment that

manifests only some of th[e] criteria [in a Listing], no matter how severely,

does not qualify.”).

7 “Inability to ambulate effectively means an extreme limitation of the

ability to walk . . . [and] is defined generally as having insufficient lower

extremity functioning to permit independent ambulation without the use of a hand-

held assistive device that limits the functioning of both upper extremities.”

20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.00B.2.b (emphasis added) (internal

citation omitted). Thus, Plaintiff’s use of a cane, even assuming its medical

necessity, would not demonstrate an “inability to ambulate effectively.”

12

Listing 14.09, the ALJ found that “the evidence fail[ed] to

demonstrate the requisite inflammation, deformity, ankylosing

spondylitis, spondyloarthropathy, or marked limitations in

activities of daily living, social functioning, or ability to

complete tasks.” (Id.) The ALJ appropriately applied the Listings

and substantial evidence of record supports his findings at step

three.

Next, the ALJ determined that Plaintiff retained the RFC to

perform medium work with frequent crouching. (See id.) In so

finding, the ALJ considered Plaintiff’s “statements about the

intensity, persistence, and limiting effects of his symptoms,” but

found such statements “inconsistent” with the evidence of record,

“because his treatment records have shown that his symptoms are

generally controlled with conservative treatment efforts.” (Tr.

46.) As further explicated by the ALJ:

[W]hile [Plaintiff] report[ed] that he ha[d] experienced

disabling pain since July 2015, . . . [in] his treatment

records in May 2015, providers found that [Plaintiff] was

doing great with medications and noted no difficulty in

terms of his strength, joints, or gait [(Tr. 367-68)].

This presentation for [Plaintiff] continued, as his

rheumatologist Tauseef Syed, M.D. noted that [Plaintiff]

experienced no degree of limitations in terms of his

activities of daily living and found that he was capable

of returning to work from an arthritis point of view

[(Tr. 361-63)]. This view for [Plaintiff] continued well

after this, as while providers in 2016 did question the

degree of work that [Plaintiff] could perform, based upon

his allegations, they all agreed that he remained

generally stable from his conditions with medications

[(Tr. 542, 554-55, 558)]. In fact, his provider, Aaron

Michael Boals, M.D. specifically noted that he found that

13

[Plaintiff] was less than fully committed to his recovery

efforts and appeared more committed to his inability to

perform work [(Tr. 558-59)]. In this, [Dr. Boals] in

great detail noted how [Plaintiff] had continued to

cancel appointments with his rheumatologist Dr. Syed and

remarked that objectively, [Plaintiff] showed no

significant evidence of degenerative changes to support

his complaints of pain [(Tr. 541, 559)]. Therefore, due

to the inconsistency in [Plaintiff’s] statements, this

led [Dr. Boals] to decide not to treat [Plaintiff], as

his allegations were not substantiated by his objective

findings. In fact, while [Plaintiff] reported that he

needed a cane to ambulate and presented to providers with

one, by July 2016, his rheumatologist found [Plaintiff]

sustained no evidence of function loss to support his

need for an assistive device [(Tr. 596)]. Objective

findings supported this finding, as x-rays of the wrists,

knees, and ankles all showed nothing more than mild

degenerative changes with [Plaintiff] [(Tr. 596-97)].

This continued as throughout his treatment records, his

providers have continued to find [Plaintiff] with no

evidence of edema or cyanosis in the extremities to

support his allegations of sustained pain and his

provider[s] have found his symptoms well controlled with

medications [(Tr. 591-92, 682)].

. . .

[T]reatment records have shown that while [Plaintiff] has

testified that he has experienced disabling difficulty in

terms of standing or walking, his providers all have

noted no significant evidence of joint instability,

swelling, or severe degenerative changes to support his

sweeping complaints of pain. Further limiting his

allegations is the fact that despite his allegations of

disabling pain, his providers have agreed that his

symptoms are well controlled with medications and have

required nothing more than continued medications for his

pain complaints. In fact, . . . his providers have[] not

only[] continued to find [Plaintiff] with full range of

motion in all extremities, five out of five in muscle

strength, and normal gait, but also, have questioned the

extent of [Plaintiff’s] pain complaints.

(Tr. 46-48.) That analysis comports with the applicable

regulations and SSA policy regarding evaluation of a claimant’s

14

subjective symptoms. See 20 C.F.R. §§ 404.1529, 416.929; see also

Social Security Ruling 16-3p, Titles II and XVI: Evaluation of

Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,

2017) .°

In short, Plaintiff has not shown that, in finding Plaintiff

not disabled, the ALJ misapplied the governing legal standards or

failed to support his factual findings with substantial evidence.

2. Opinion Evidence

Plaintiff next maintains that, in defending the ALJ’s denial

of benefits, “[Defendant] only discuss[ed] doctors that had no

re[a]l deal of [Plaintiff’s] medical condition . . . and did not

mention the doctor that found the problem that [Plaintiff] was

dealing with” or other doctors such as “[Dr.] Mothershed[,] .. .

Dr[.] Brown, Dr[.] Z4iolkowska, Dr[.] Everly or Dr[.] Reyes.”

(Docket Entry 20 at 1 (emphasis added) .) Those contentions fall

short.

At the outset, the undersigned acknowledges that Plaintiff’s

above-quoted argument appears in Plaintiff’s Reply in opposition to

Defendant’s Motion for Judgment on the Pleadings and supporting

Memorandum (see id.), rather than in Plaintiff’s Complaint or his

® Plaintiff’s argument that an alleged increase in his Humira dose from one

shot every two weeks to one shot per week “show[s his] problem has increase[d]”

falls short. (Docket Entry 16 at 1; see also Docket Entry 20 at 1.) Plaintiff

does not cite to any record documenting an increase in his Humira dose (see id.),

and the most recent records from his rheumatologist reflect continuation of his

every-other-week Humira dose (see Tr. 592, 682).

15

motion for judgment (see Docket Entries 2, 20). Moreover, that

argument challenges Defendant’s evaluation of the opinion evidence

rather than specifically assigning error to the findings of fact

and/or conclusions of law of the ALJ. Nevertheless, the

undersigned must liberally construe Plaintiff’s pro se arguments,

Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2002) (citing Haines

v. Kerner, 404 U.S. 519, 520 (1972)), and thus will interpret

Plaintiff’s argument as a contention that the ALJ did not assign

sufficient weight to the opinions and findings of “the doctor that

found the problem that Plaintiff was dealing with” or to Drs.

Mothershed, Brown, Ziolkowska, Everly, or Reyes.

As an additional threshold matter, Plaintiff has neither

identified “the doctor that found the problem that Plaintiff was

dealing with” nor the specific opinions and/or findings by Drs.

Brown, Ziolkowska, Everly, or Reyes that warranted greater

consideration or weight. (See Docket Entry 20 at 1.) In light of

this, the Court can only generally assess whether the ALJ

sufficiently considered opinions (if any) offered by those doctors.

With respect to Plaintiff’s former primary care physician Dr.

Brown, the record reflects that she treated Plaintiff on only two

occasions during the relevant period in this case and, on neither

occasion, offered an opinion regarding the impact of Plaintiff’s

impairments on his ability to function. (See Tr. 356 (note dated

Oct. 2, 2015, referring Plaintiff to a rheumatologist, podiatrist,

16

and orthopedist)), 358-59 (office visit on Aug. 26, 2015, noting

that Plaintiff was “[o]verall doing well” and that Humira helped

his arthritis and hidradenitis).) Moreover, although the ALJ did

not specifically discuss either of Dr. Brown’s treatment notes

during the relevant period (see Tr. 43-48), the ALJ labored under

no obligation to explicitly discuss every finding in each piece of

evidence in the record, see Black v. Apfel, 143 F.3d 383, 386 (8th

Cir. 1998); see also Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.

1995), and he noted that he “careful[ly] consider[ed] [] the entire

record” (Tr. 45 (bold font omitted)). Thus, Plaintiff has not

shown how an express discussion of Dr. Brown’s two treatment

records would make a material difference in the outcome of his

case.

In contrast to Dr. Brown, the ALJ did discuss Plaintiff’s

treatment by Dr. Ziolkowska in 2016 and 2017 (see Tr. 47), noting

that she “found [Plaintiff] sustained no evidence of function loss

to support his need for an assistive device” (id. (citing Tr. 596))

and that she “continued to find [Plaintiff] with no evidence of

edema or cyanosis in the extremities to support his allegations of

sustained pain and . . . found his symptoms well controlled with

medications” (id. (citing Tr. 591-92, 682)). Plaintiff does not

elucidate how the ALJ’s further discussion of Dr. Ziolkowska’s

treatment records would have changed the outcome of his case.

(See Docket Entries 2, 16, 20.) Furthermore, the record does not

17

reflect any treatment during the relevant period by either Dr.

Everly or Dr. Reyes.

With respect to podiatrist Dr. Mothershed, Plaintiff disputes

the ALJ’s statement that his “ankles showed only mild degenerative

changes when [Plaintiff’s] right foot has be[en] fused and ha[s] no

range of motion as [Dr.] Mothershed explained.” (Docket Entry 20

at 1 (referencing Tr. 47).)° Although an x-ray of Plaintiff’s

right ankle reflected “[p]rior right subtalar arthrodesis with a

single cannulated lag screw,” the arthrodesis remained “without

failure or complication.” (Tr. 596 (emphasis added).) Moreover,

Dr. Mothershed did not find that Plaintiff lacked any range of

motion in his right ankle (see Tr. 522-23, 555-56); rather, Dr.

Mothershed noted “generalized arthritic changes” of the subtalar

joint, but “good fusion,” “[n]o appreciable edema,” intact

sensation and reflexes, “reasonable ankle dorsiflexion with the

knee extended and the knee flexed bilaterally” with “[n]lo .. .

crepitus . . . with range of motion of the subtalar and the ankle

joints bilaterally” and “good stability [] of the ankle, subtalar,

mid-tarsal, and metatarsophalangeal joints of both lower

extremities” (id. (emphasis added)).

° The record reflects that Dr. Mothershed treated Plaintiff on only one

occasion (January 7, 2016) (see Tr. 517-35, 554-57 (duplicate copy of Jan. 7,

2016, visit)) and thus Dr. Mothershed’s opinions, as a general proposition, do

not warrant controlling weight, Turberville v. Colvin, No. 1:11CV262, 2014 WL

1671582, at *6 (M.D.N.C. Apr. 23, 2014) (unpublished), recommendation adopted,

slip op. (M.D.N.C. May 15, 2014) (Eagles, J.).

18

Dr. Mothershed also noted “that[,] given the chronicity of

[Plaintiff’s] symptoms[, ] he will not be able to perform physical

work.” (Tr. 521, 554.) The ALJ evaluated and weighed that opinion

as follows:

[T]he statement from [Plaintiff’s] provider, [Dr.

Mothershed], who found that [Plaintiff] would be unable

to perform physical work is granted little weight, as []

statements that a claimant is “disabled[,”] “unable to

work[,”] [or] can or cannot perform a past job, meets a

Listing or the like are not medical opinions but are

administrative findings dispositive of a case, requiring

familiarity with the Regulations and legal standards set

forth therein [(Tr. 554)]. Such issues are reserved to

the Commissioner, who cannot abdicate his statutory

responsibility to determine the ultimate issue of

disability.

(Tr. 47.) The ALJ did not err in characterizing Dr. Mothershed’s

opinion regarding Plaintiff’s inability to perform “physical work”

(Tr. 521, 554) as one involving a matter reserved to the

Commissioner, and certainly did not err by invoking the

Commissioner’s long-time rule that such opinions constitute matters

dispositive of a case and carry no special significance (see Tr.

47). See generally 20 C.F.R. §§ 404.1527(d), 416.927(d).

In sum, Plaintiff has not demonstrated entitlement to reversal

or remand arising out of the ALJ’s evaluation of the opinion

evidence of record.10

10 Plaintiff notes that he “would like to have [his] day in court with a

jury of [his] peers.” (Docket Entry 20 at 1-2.) However, “the Act does not

entitle Plaintiff to a jury trial. See 42 U.S.C. § 405(g) (“The court shall have

power to enter, upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Commissioner . . ., with

(continued...)

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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

judgment (Docket Entry 16) be denied, that Defendant’s Motion for

Judgment on the Pleadings (Docket Entry 17) be granted, and that

judgment be entered dismissing this action.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

November 19, 2019

10(...continued)

or without remanding the cause for a rehearing.” (emphasis added), § 405(h) (“No

findings of fact or decision of the Commissioner . . . shall be reviewed by any

person, tribunal, or governmental agency except as herein provided.”).” Marshall

v. Colvin, No. 1:13CV130, 2015 WL 3649754, at *6 (M.D.N.C. June 10, 2015)

(unpublished), recommendation adopted, 2015 WL 4459400 (M.D.N.C. July 20, 2015)

(unpublished) (Beaty, Jr., S.J.).

20