# DAWLING v. SAUL

> District Court, M.D. North Carolina · November 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10253379

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** November 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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...)
19
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253379. Public record. Not legal advice.