# Smith v. Saul

> District Court, W.D. North Carolina · January 11, 2021

URL: https://www.frixlaw.com/law-library/cases/10256591

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** January 11, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10256591

## How later opinions describe it (automated extraction)

- explaining courts do not “min[e] facts from the [administrative] record to support the ALJ’s decisions”
- explaining courts do not “min[e] facts from the [administrative] record to support the ALJ’s decisions”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:20-cv-00001-MOC

LC SMITH, )
)
Plaintiff, )
)
vs. )
) ORDER
ANDREW M. SAUL, )
Commissioner of Social Security, )
)
Defendant. )
_______________________________________)

THIS MATTER is before the Court on review of a final decision of the Commissioner of
Social Security denying Plaintiff LC Smith’s application for disability and disability insurance
benefits under Title II, of the Social Security Act (“Act”). Plaintiff filed a Motion for Summary
Judgment, requesting remand for rehearing. (See Doc. No. 11). The Commissioner in turn filed a
Motion for Summary Judgment, requesting affirmance. (See Doc. No. 17). As set forth below,
Plaintiff’s motion is denied, the Commissioner’s motion is granted, and this action is dismissed.
I. BACKGROUND
A. Administrative Exhaustion
On February 1, 2016, Plaintiff filed an application for a period of disability and disability
insurance benefits alleging a disability onset date of May 6, 2015 (Tr. 10, 190-193). The
application was denied initially and upon reconsideration (Tr. 10, 118-121, 123-130). On August
16, 2018, the ALJ held a hearing where Plaintiff appeared along with his attorney and an impartial
vocational expert (Tr. 10, 39-96). The ALJ issued a decision on November 19, 2018, finding that
Plaintiff was not disabled (Tr. 10-19). On February 3, 2019, the Appeals Council denied Plaintiff’s
request for review (Tr. 1-6), thereby rendering the ALJ’s decision the final decision of the
Commissioner. Plaintiff has exhausted available administrative remedies, so this case is ripe for
judicial review, pursuant to 42 U.S.C. § 405(g).
B. Sequential Evaluation Process
The Act provides that “an individual shall be considered to be disabled . . . if [s]he is unable
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
id. § 423(d)(1)(A). The Commissioner uses a five-step sequential evaluation process to determine
whether a claimant is disabled within the meaning of the Act:
1. An individual who is working and engaging in substantial gainful activity will
not be found to be “disabled” regardless of medical findings;

2. An individual who does not have a “severe impairment” will not be found to be
disabled;

3. If an individual is not working and is suffering from a severe impairment that
meets the durational requirement and that meets or equals a listed impairment
in Appendix 1 to Subpart P of 20 C.F.R. § 404, a finding of “disabled” will be
made without consideration of vocational factors;

4. If, upon determining residual functional capacity, the Commissioner finds that
an individual is capable of performing work he or she has done in the past, a
finding of “not disabled” must be made;

5. If an individual’s residual functional capacity precludes the performance of past
work, other factors including age, education, and past work experience, must
be considered to determine if other work can be performed.

See 20 C.F.R. §§ 404.1520, 416.920. The claimant “bears the burden of production and proof
during the first four steps of the inquiry.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If
the claimant carries its burden through the fourth step, the burden shifts to the Commissioner to
show other work exists in the national economy that the claimant can perform. See id.
C. The Administrative Decision
The issue before the ALJ was whether Plaintiff was disabled from May 6, 2015, the alleged
disability onset date, through December 31, 2017, the date last insured. Using the sequential
evaluation process, the ALJ concluded at step five that Plaintiff was not disabled during that period
within the meaning of the Act.
In particular, the ALJ found at step one of the sequential evaluation that Plaintiff had not

engaged in SGA since May 6, 2015, the alleged onset date (Tr. 12), and at step two that Plaintiff
had the following combination of severe, medically determinable impairments: heavy metal
poisoning, gastroesophageal reflux disease (GERD)/colitis, lumbar spine (spondylosis and mild
degenerative changes and radiculopathy), neuropathy, fibromyalgia, polyarthralgia, asthma, and
obesity (Tr. 12). The ALJ noted that the evidence did not demonstrate that history of obstructive
sleep apnea, hypertension, hypogonadism, fatty liver, hypothyroidism, hyperlipidemia, history of
chronic kidney disease, headaches, and myositis caused, or were expected to cause more than
minimal work-related limitations lasting at least 12 consecutive months (Tr. 12).
The ALJ then found at step three that none of Plaintiff’s impairments, nor any combination

thereof, met or equaled one of the conditions in the Listing of Impairments at 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (Tr. 13).
Before proceeding to step four, the ALJ found that Plaintiff had the residual functioning
capacity (“RFC”)1 to perform light work, as defined in 20 C.F.R. § 404.1567(b), except the
claimant can occasionally climb ramps and stairs but never ladders, ropes or scaffolds; he can
frequently balance, stoop, kneel, crouch; and he can occasionally crawl but should have no

1 An individual’s RFC is his ability to do physical and mental work activities on a sustained basis
despite limitations from his impairments. In making this finding, an ALJ must consider all of the
claimant’s impairments, including impairments that are not severe. See 20 C.F.R. §§ 404.1520(e)
and 404.1545.
concentrated exposure to hazardous work settings as well as avoiding concentrated exposure to
dusts, fumes, odors, or pulmonary irritants (Tr. 13). In addition, he would need the option to sit for
30 minutes after standing or walking for 30 minutes. Finally, he would be off-task 10 percent of
the workday in addition to normal work breaks (Tr. 13).
The ALJ then found at step four that Plaintiff could not perform any past relevant work

and at five that Plaintiff — given his age, education, work experience and RFC — could perform
jobs that existed in significant numbers in the national economy (Tr. 18-19). Thus, the ALJ decided
that Plaintiff was not disabled within the meaning of the Act from May 6, 2015, through December
31, 2017, the date last insured (Tr. 19).
II. DISCUSSION
In considering cross-motions for summary judgment, this Court “examines each motion
separately, employing the familiar standard” provided by Federal Rule of Civil Procedure 56.
Desmond v. PNGI Charles Town Gaming, 630 F.3d 351, 354 (4th Cir. 2011). Thus, each motion
is reviewed “on its own merits ‘to determine whether either of the parties deserve judgment as a

matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted).
When reviewing a disability determination, the Court “is required to uphold the
determination when an ALJ has applied correct legal standards and the ALJ’s factual findings are
supported by substantial evidence.” Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th
Cir. 2012). Courts do not conduct de novo review of the evidence. See Smith v. Schweiker, 795
F.2d 343, 345 (4th Cir. 1986). Instead, our inquiry is limited to whether there is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). It “consists of more than a mere scintilla evidence but may be less than a preponderance.”
Id. The Court will not “reweigh conflicting evidence, make credibility determinations, or substitute
[its] judgment for that of the ALJ.” Id. (alterations omitted). Put simply, “[w]here conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility
for that decision falls on the ALJ.” Id. (alterations omitted).
“A necessary predicate to engaging in substantial evidence review is a record of the basis

for the ALJ’s ruling.” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Thus, “[t]he record
should include a discussion of which evidence the ALJ found credible and why, and specific
application of the pertinent legal requirements to the record evidence.” Id. If the Court has “no
way of evaluating the basis for the ALJ’s decision, ‘the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or explanation.’” Id. (quoting Florida Power
& Light v. Lorion, 470 U.S. 729, 744 (1985)); see Brown v. Colvin, 639 F. App’x 921, 922 (4th
Cir. 2016) (explaining courts do not “min[e] facts from the [administrative] record to support the
ALJ’s decisions”). This ensures the ALJ can “adequately explain his reasoning . . . in the first
instance.” Radford, 734 F.3d at 296.

In this case, Plaintiff contends that the ALJ erred in the evaluation of Dr. Bundy, Dr.
Habashi-Ahigian, and Dr. Mouortada’s opinions. Plaintiff alleges these failures frustrate judicial
review, so remand is appropriate for reconsideration. The Court disagrees and finds that the ALJ
properly evaluated these opinions. An ALJ’s determination “as to the weight to be assigned to a
medical opinion generally will not be disturbed absent some indication that the ALJ has dredged
up ‘specious inconsistencies,’. . . or has failed to give a sufficient reason for the weight afforded a
particular opinion.” Dunn v. Colvin, 607 Fed. App’x 264, 267 (4th Cir. 2015) (internal citations
omitted).
As the ALJ noted in the decision, Dr. Bundy opined that Plaintiff could not work because
he needed to frequently lie down and he could only occasionally sit, stand, walk, or drive (Tr. 15,
2216-2218). Additionally, Dr. Bundy opined that Plaintiff could occasionally lift and carry up to
10 pounds and never more and occasionally perform all postural activities (Tr. 15, 2216-2218).
Dr. Bundy also found that Plaintiff could not work full time, could not be exposed to machinery,

and other environmental conditions (Tr. 15, 2216-2218). The ALJ determined that this opinion
was only entitled to partial weight because there was no evidence of functional testing to support
these limitations. See 20 C.F.R. § 404.1527(c)(3).
While Dr. Bundy opined Plaintiff needed to frequently lie down and could occasionally lift
and carry up to 10 pounds, imaging of the lumbar spine the month prior showed only mild
spondylosis at L2-3 (Tr. 15). Moreover, a CT of the back was negative and a bone scan showed
only mild arthritic changes in the shoulders and ankles (Tr. 15). A stress test the same month was
normal and exercise tolerance was fair without evidence for ischemia (Tr. 15). The ALJ noted that
an EMG showed sensory neuropathy in December 2015 and a MRI of the claimant’s lumbar spine

showed mild degenerative changes in January 2016 (Tr. 15). In April 2016, the ALJ acknowledged
Plaintiff’s report of serious symptoms such as weakness, fatigue and his legs giving out (Tr. 16).
Notwithstanding these complaints, Plaintiff’s physical examination revealed normal ambulation,
no joint tenderness to the hands, wrists, hips, shoulders, knees, ankles or feet, and straight leg raise
was negative (Tr. 16). Similarly, subsequent treatment records present similar complaints but no
more than mild objective findings (Tr. 16). In October 2016, Dr. Bundy opined that Plaintiff was
“probably disabled” and, again, the ALJ determined that this opinion was unsupported by the
evidentiary record (Tr. 16). The ALJ went on to note that there was no clear cause of Plaintiff’s
multiple alleged symptoms (Tr. 16). By June 2018, Plaintiff’s gait continued to be observed as
normal along with his musculoskeletal examination (Tr. 16).
As a threshold matter, the question to whether the Plaintiff is disabled is reserved for the
Commissioner of Social Security. 20 C.F.R. §§ 404.1527(d) and 416.927(d)); see also Craig, 76
F.3d at 590 (stating that conclusory opinions based upon plaintiff’s subjective complaints are not

entitled to particular deference). Here, the ALJ did not err in finding that Dr. Bundy’s statements
attempted to make a determination that is ultimately reserved to the Commissioner. Additionally,
the ALJ noted that Dr. Bundy’s assessments were unsupported by the evidence. As the ALJ
discussed, despite Plaintiff’s complaints of physical pain, physical examinations were generally
normal.
Similarly, Dr. Habashi-Ahigian opined that Plaintiff required a highly restrictive RFC that
necessitated lying down, more than two 10-minute rest breaks and one 30-minute meal break and
could not maintain attention and stay on task 85 percent of the workday/workweek (Tr. 2166-
2167). The ALJ explained that this opinion was inconsistent with Plaintiff’s treatment history, in

addition to being after the last insured date, and was therefore afforded little weight. As discussed
above, Plaintiff’s treatment history showed that imaging revealed generally mild findings and
Plaintiff’s gait was regularly described as normal. It is also important to note that there is also no
indication that more intense treatment modalities were prescribed. Gross v. Heckler, 785 F.2d
1163, 1166 (4th Cir. 1986); Mickles v. Shalala, 29 F.3d 918, 930 (4th Cir. 1994) (inconsistencies
between the claimant’s allegations and the treatment sought to alleviate that condition is highly
probative); See also Gatson v. Berryhill, 1:17-CV-182, 2018 WL 3873593, at*6 (W.D.N.C. 2018)
(It is not improper for the ALJ to consider the absence of evidence when formulating the RFC).
The opinions of Dr. Bundy and Dr. Habashi-Ahigian were weighed and considered by the
ALJ. In sum, substantial evidence supports the ALJ’s decision regarding these medical opinions.
Plaintiff further argues that the ALJ failed to explain the reason for discounting Dr.
Mourtada’s opinion (Pl. Br. 25-29). As the ALJ discussed, in February 2018 Dr. Mourtada
indicated that Plaintiff’s symptoms began in 2015 after working with a company mixing chemicals

(Tr. 16, 2149-2157). Dr. Mourtada described the etiology of Plaintiff’s symptoms as related to
heavy metal poisoning. (Id.). The ALJ noted that Dr. Mourtada did not see any extensive work-up
to confirm such a diagnosis (Tr. 16). Dr. Mourtada opined that Plaintiff could not work fulltime
and limited Plaintiff to sedentary work with never, driving, bending, crawling, climbing, or
balancing (Tr. 16-17).
Contrary to Plaintiff’s argument, the ALJ explained that Dr. Mourtada was entitled to only
light weight because despite admitting to not having full records, Dr. Mourtada did not base his
assessment on any functional testing or blood tests to confirm heavy metal poisoning (Tr. 17). See
20 C.F.R. § 404.1527(c)(3). The ALJ therefore found that the functional limitations Dr. Mourtada

assigned to Plaintiff are extreme given that most of the objective findings were normal. As the ALJ
noted, the less than sedentary limitations that Dr. Mourtada opined to were more consistent with
Plaintiff’s subjective complaints than anything presented during Plaintiff’s treatment history.
To be clear, the ALJ found that Plaintiff’s impairments were severe impairments that
required accommodation in the RFC, but also that they were not disabling. These facts are not
contradictory, and it was the ALJ’s duty to consider the extent of the restrictions caused by
Plaintiff’s impairments. In other words, it was proper for the ALJ to consider whether objective
findings were consistently normal, whether his condition was stable, and how he was able to
function despite his alleged symptoms (Tr. 13-17). Importantly, although not highlighted in
Plaintiff's brief, the ALJ did not simply rely on evidence supposedly contradicting his assertions.
Instead, the ALJ evaluated all of the evidence, which revealed that imaging results were mostly
normal, spirometry was within normal limits, and numerous musculoskeletal examinations were
within normal limits (Tr. 13-17). The ALJ accounted for Plaintiff's allegations to the extent they
were consistent with and supported by the evidence when determining the RFC. See Craig,76 F.3d
at 595 (a claimant’s subjective allegations “need not be accepted to the extent they are inconsistent
with the available evidence, including objective evidence’”’).
As discussed above, the ALJ supported his decision with substantial evidence and must be
upheld.
ORDER
IT IS, THEREFORE, ORDERED that: Plaintiff's Motion for Summary Judgment, (Doc.
No. 11), is DENIED; Defendant’s Motion for Summary Judgment, (Doc. No. 17), is GRANTED.
The decision of the Commissioner, denying the relief sought by Plaintiff, is AFFIRMED, and this
action is DISMISSED.

9, 2021

i )
pr-ervrnca
Max O. Cogburn i yg
United States District Judge Tt gg

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256591. Public record. Not legal advice.