CRABTREE v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/21/2019, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) be granted, and that this action be dismissed with prejudice.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANGELA CRABTREE,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,1
Defendant.

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1:18CV466

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Angela Crabtree, brought this action 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 claim for Supplemental Security Income (“SSI”).
(Docket Entry 1.) Defendant has filed the certified administrative
record (Docket Entry 7 (cited herein as “Tr. __”)), and both
parties have moved for judgment (Docket Entries 11, 13; see also
Docket

Entry

12

(Plaintiff’s

(Defendant’s Memorandum)).

Memorandum);

Docket

Entry

14

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 SSI. (Tr. 219-25.) Upon denial of that
application initially (Tr. 110-19, 131-34) and on reconsideration
(Tr. 120-30, 141-50), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 151-53).

At the hearing,

which Plaintiff, her attorney, and a vocational expert (“VE”)
attended (Tr. 42-72), the ALJ determined that, in order to fully
develop the record, he needed to consult a medical expert (“ME”) in
the

field

of

cardiology,

send

Plaintiff

to

a

consultative

psychological examination to gauge her cognitive symptoms, and
convene a supplemental hearing (see Tr. 69-70).

Plaintiff, her

attorney, a VE, and an ME attended the supplemental hearing.

(Tr.

73-109). The ALJ subsequently ruled that Plaintiff did not qualify
as disabled under the Act.

(Tr. 8-30.)

The Appeals Council

thereafter denied Plaintiff’s request for review (Tr. 1-7, 217-18,
354-56), thereby making the ALJ’s ruling the Commissioner’s final
decision for purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] has not engaged in substantial gainful
activity since September 26, 2013, the application date.
. . .
2.
[Plaintiff] has the severe impairments of postural
orthostatic tachycardia syndrome (POTS), chronic fatigue
syndrome (CFS), and depression.
. . .
2

3.
[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.
. . .
4.
. . . [Plaintiff] has the residual functional
capacity to perform work at the light exertional level
who can stand and/or walk for up to a total of [four]
hours in an [eight-]hour workday, and can sit for up to
a total of [six] hours in an [eight]-hour workday. She
can perform goal-oriented rather than production oriented
work (e.g., the performance of work tasks in allotted
time is more important than the pace at which the work
tasks are performed).
She can never climb ladders,
ropes, or scaffolds; can occasionally balance and stoop.
She can have occasional exposure to moving mechanical
parts and high, exposed places (as defined by the
[Selected Characteristics of Occupations (“SCO”)]). She
can perform work that does not require the operation of
a motor vehicle or heavy equipment.
She can perform
simple, routine work (i.e., requires little or no
judgment, requires little specific vocational preparation
and can be learned on the job within 30 days, does not
provide work skills and has no more than occasional
changes in core work duties).
She can have frequent
contact with the general public, coworkers, and
supervisors.
. . .
5.

[Plaintiff] has no past relevant work.

. . .
9.
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.
. . .
10. [Plaintiff] has not been under a disability, as
defined in the [Act], since September 26, 2013, the date
the application was filed.

3

(Tr.

13-29

(bold

font

and

internal

parenthetical

citations

omitted).)
II.

DISCUSSION

Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] 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.
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,

the Court “must uphold the factual findings of the ALJ 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, 401 (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) (brackets and internal
quotation marks omitted).

“If there is evidence to justify a

4

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 Commissioner].”

Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,

the

responsibility

for

that

decision

falls

on

the

[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.

5

(quoting

42

U.S.C.

§

423(d)(1)(A)).2

“To

regularize

the

adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into 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.

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 the 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

2

The Act “comprises two disability benefits programs. The Disability Insurance
Benefits Program 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).
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
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

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,
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.
179-80.

See id. at

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 claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work

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

experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

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)

the

ALJ

“erred

in

failing

to

give

more

weight

to

[consultative psychological examiner] Dr. [Joseph P.] Ap[p]ollo’s
opinion without sufficiently explaining [the ALJ’s] rationale”
(Docket Entry 12 at 4 (underscoring omitted));
2) “[t]he ALJ erred in failing to include time off-task or
absenteeism in his RFC finding and in using improper evidence and
rationale for finding that Plaintiff would be able to be present
and on-task as required by competitive employment” (id. at 7
(underscoring omitted)); and
3) the ALJ “erred in failing to find that [Plaintiff’s]
fibromyalgia is a severe impairment” (id. at 11 (underscoring
omitted)).

5

A claimant thus can establish disability 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 14 at 12-23.)
1. Dr. Appollo’s Opinions

In Plaintiff’s first issue on review, she asserts that the ALJ
“erred in failing to give more weight to Dr. Ap[p]ollo’s opinion
without sufficiently explaining [the ALJ’s] rationale.”
Entry 12 at 4 (underscoring omitted).)

(Docket

In particular, Plaintiff

argues that “[t]he ALJ . . . declined to give Dr. Ap[p]ollo’s
opinion significant weight[, but t]he only rationale [the ALJ]
provided for th[at] weight was that ‘it appear[ed] [Dr. Appollo]
relied quite heavily on the subjective report of symptoms and
limitations provided by [Plaintiff], seeming to accept uncritically
as true, most, if not all, of what [Plaintiff] reported.’” (Id. at
5 (quoting Tr. 25).)

According to Plaintiff, “the ALJ completely

failed to acknowledge the numerous observations and significant
objective testing” reflected in Dr. Appollo’s report.
(referencing Tr. 770-79).)
marked

limitation

in

(Id. at 6

Plaintiff further maintains that “[a]

one’s

ability

to

properly

respond

appropriately [sic] to usual workplace situations and changes in a
routine work setting [as found by Dr. Appollo] is not consistent
with competitive work activity[ and ] would prevent an individual
from being able to stay on task and attend work in a full-time
setting.”

(Id. (referencing Tr. 772).)

fall short.

9

Plaintiff’s contentions

Consultative examiners like Dr. Appollo do not constitute
treating

sources

under

the

regulations,

see

20

C.F.R.

§ 416.927(c)(2), and thus their 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.).
consultative

However, the ALJ must nevertheless evaluate

opinions

using

the

factors

outlined

in

the

regulations, and expressly indicate and explain the weight he or
she

affords

to

such

opinions.

See

20

C.F.R.

§

416.927(c)

(“Regardless of its source, [the ALJ] will evaluate every medical
opinion [he or she] receive[s]” and, where an opinion does not
warrant controlling weight, the ALJ must “consider all of the . . .
factors [in 20 C.F.R. § 416.927(c)(1)-(6)] in deciding the weight
[to] give to any medical opinion.” (emphasis added)); Social
Security Ruling 96–5p, Medical Source Opinions on Issues Reserved
to the Commissioner, 1996 WL 374183, at *5 (July 2, 1996) (“SSR
96–5p”) (noting that ALJs “must weigh medical source statements
. . . [and] provid[e] appropriate explanations for accepting or
rejecting such opinions” (emphasis added)).
On October 6, 2016, Dr. Appollo conducted a consultative
psychological
reporting

examination

Plaintiff’s

(“CPE”)

diagnosis

of
as

Plaintiff
“[m]ajor

(Tr.

774-79),

[d]epressive

[d]isorder, severe, recurrent” (Tr. 779 (bold font omitted)).

10

Plaintiff’s performance on the Wechsler Adult Intelligence Scale IV
(“WAIS-IV”) reflected processing speed in the average range, all
other composite scores in the low average range, and a full scale
IQ of 80.

(See Tr. 777-78.)

Dr. Appollo noted that Plaintiff “was

pleasant and responsive” and that her “[m]ood and affect were
stable but depressed and tearful.”

(Tr. 777.)

Ultimately, Dr.

Appollo concluded that Plaintiff possessed “[l]ow [a]verage ability
to understand, retain and follow instructions” and “to sustain
attention to perform simple repetitive tasks” but “would have
significant problems in the ability to tolerate stress and pressure
associated with day to day work activity.”

(Tr. 779.)

Dr. Appollo

also completed a “Medical Source Statement of Ability to Do WorkRelated Activities (Mental) [(‘MSS’)],” on which he opined that
Plaintiff had mild restriction of her ability to understand,
remember, and carry out both simple and complex instructions and of
her ability to make judgments on both simple and complex workrelated decisions (Tr. 770), moderate restriction on her ability to
interact with the public, supervisors, and co-workers (Tr. 772),
and marked restriction on her ability to “[r]espond appropriately
to usual work situations and to changes in a routine work setting”
(id.).
The ALJ discussed Dr. Appollo’s opinions from the CPE and MSS
and then weighed them as follows:
Dr. Appollo’s opinions can be given some weight because
they were based at least in part on the objective testing
11

that he administered. However, he did not indicate that
he had reviewed the medical evidence of record and it
appears that he relied quite heavily on the subjective
report
of
symptoms
and
limitations
provided
by
[Plaintiff], seeming to uncritically accept as true most,
if not all, of what [Plaintiff] reported.
Yet, as
explained elsewhere in th[e ALJ’s] decision, there exist
good reasons for questioning the reliability of
[Plaintiff’s] subjective complaints.
(Tr. 25 (internal citation omitted).)

The ALJ’s above-described

analysis demonstrates that Plaintiff’s arguments fail for three
reasons.
First, the record contradicts Plaintiff’s assertion that “the
ALJ completely failed to acknowledge the numerous observations and
significant objective testing” reflected in Dr. Appollo’s report
(Docket Entry 12 at 6 (emphasis added)).

The ALJ observed that Dr.

Appollo “not[ed] that [Plaintiff’s] WAIS-IV full scale IQ was 80,
consistent with low average intellectual ability,” that Plaintiff
“was pleasant and responsive,” that “her thought processes were
relevant and coherent,” and that “her mood-affect was depressed and
tearful.”

(Tr. 14 (citing Tr. 774-80).)

Moreover, the ALJ

expressly accorded Dr. Appollo’s opinions “some weight because they
were based at least in part on the objective testing that he
administered” (Tr. 25 (emphasis added)), which clearly indicates
that the ALJ both acknowledged and credited (to some degree) the
objective testing in Dr. Appollo’s report.
Second, the ALJ did not err by finding that Dr. Appollo relied
heavily on Plaintiff’s subjective symptom reporting.

12

In that

regard, the ALJ observed that Dr. Appollo’s CPE and MSS failed to
reflect “that he had reviewed the medical evidence of record” (Tr.
25).

Moreover, a comparison of Plaintiff’s subjective symptom

reporting during the examination, with Dr. Appollo’s conclusions on
the CPE and MSS, supports the ALJ’s observation that Dr. Appollo
based his opinions, in large part, on Plaintiff’s subjective
statements.

For example, Plaintiff reported to Dr. Appollo that

she “[f]eels sad and depressed most days” with a “[l]oss of energy
and motivation,” and that she had “been on antidepressants in the
past.” (Tr. 775 (emphasis added).)

In comparison, Dr. Appollo

noted as support for his more significant restrictions on the MSS
that Plaintiff “continues to feel depressed” and “complains of a
loss of energy and motivation.”

(Tr. 772 (emphasis added).)

Dr.

Appollo also included on the CPE, as an explanation for his opinion
that Plaintiff would have significant problems tolerating work
stress and pressure, that Plaintiff “continues to feel depressed”
and had not “been able to find an antidepressant that [wa]s
helpful.”

(Tr.

779

(emphasis

added).)

Given

the

lack

of

documentation that Dr. Appollo reviewed any record medical evidence
and the similarity between Plaintiff’s subjective symptom reporting
and Dr. Appollo’s conclusions, the ALJ did not err by discounting
Dr. Appollo’s opinions as based heavily on Plaintiff’s subjective
complaints.

13

Third,

Plaintiff

erroneously

asserts

that

“[t]he

only

rationale [the ALJ] provided for [according Dr. Appollo’s opinion
some] weight was that ‘it appear[ed] [Dr. Appollo] relied quite
heavily on the subjective report of symptoms and limitations
provided by [Plaintiff]’” (Docket Entry 12 at 5 (quoting Tr. 25)
(emphasis added)).

In fact, the ALJ further found that, “as

explained elsewhere in th[e ALJ’s] decision, there exist good
reasons for questioning the reliability of [Plaintiff’s] subjective
complaints.” (Tr. 25.) Consistent with that statement, earlier in
the decision, the ALJ detailed the reasons supporting his finding
that Plaintiff’s “allegations as to the intensity, persistence and
limiting effects of [her] symptoms [we]re disproportionate [to] and
not consistent with the corroborating evidence” (Tr. 20). (See Tr.
20-21.)

Notably, Plaintiff did not challenge the ALJ’s evaluation

of Plaintiff’s subjective symptom reporting.
12.)

(See Docket Entry

Thus, the ALJ based his assignment of only some weight to Dr.

Appollo’s opinion not only on the fact that it relied heavily on
Plaintiff’s subjective symptom reporting, but also on the fact (not
contested

by

Plaintiff)

that

her

symptom

reporting

lacked

consistency with the evidence of record.
Plaintiff additionally argues that “[a] marked limitation in
one’s ability to properly respond appropriately [sic] to usual
workplace situations and changes in a routine work setting [as
found by Dr. Appollo on the MSS] is not consistent with competitive

14

work activity[ and ] would prevent an individual from being able to
stay on task and attend work in a full-time setting.”
Entry 12 at 6 (referencing Tr. 772).)

(Docket

However, the definition of

“[m]arked” on the MSS itself belies Plaintiff’s argument.
770.)

According

to the

MSS,

a “[m]arked”

restriction

(Tr.
means

“serious limitation” and “substantial loss in the ability to
effectively function,” whereas the MSS defines an “[e]xtreme”
restriction
function.”

as

“major

limitation”

(Id. (emphasis added).)

and

“no

useful

ability

to

Moreover, the ALJ expressly

credited Dr. Appollo’s opinion that Plaintiff suffered marked
restriction of her ability to respond appropriately to workplace
situations

and

changes

by

finding

that

Plaintiff

had

marked

limitation in her ability to adapt and manage herself at step three
of the SEP (see Tr. 17); however, because meeting the requirements
of Listing 12.04 (“[d]epressive, bipolar and related disorders”)
requires two marked ratings (or one extreme rating) in the four
areas of mental functioning, see 20 C.F.R. Pt. 404, Subpt. P, App’x
1, § 12.04, the ALJ properly found that the marked rating in
adapting and managing oneself did not equate to a finding of
disability (see Tr. 17 (“Because [Plaintiff’s] mental impairment
d[id] not cause at least two ‘marked’ limitations or one ‘extreme’
limitation, the ‘paragraph B’ criteria [of Listing 12.04] are not
satisfied.”)).

15

In sum, Plaintiff has not established reversible error with
respect to the ALJ’s evaluation of Dr. Appollo’s opinions.
2. Time Off-Task and Absenteeism
Next, Plaintiff challenges the ALJ’s “fail[ure] to include
time off-task or absenteeism in his RFC finding” and his “us[e of]
improper evidence and rationale for finding that Plaintiff would be
able

to

be

present

employment.”

and

on-task

as

required

by

competitive

(Docket Entry 12 at 7 (underscoring omitted).)

More

specifically, Plaintiff faults the ALJ for “us[ing] his own selfdeveloped range [of acceptable time off-task and absenteeism in
competitive employment] based on testimony from other [VEs] in
other hearings that [we]re not part of the record in this case.”
(Id.

at

10

(referencing

Tr.

29).)

According

to

Plaintiff,

“[b]ecause the ALJ acknowledged that [Plaintiff] would be off-task
in a work setting, yet failed to include specific limitations
regarding her time off-task in [the] RFC finding,” the Court
“cannot tell whether [Plaintiff’s time off-task] would truly be in
line with the 10[ percent acceptable time off-task] as noted by the
VE testifying at the hearing, or with the [zero to five percent]
range [of

acceptable

[decision].”

time

off-task

also]

(Id. (referencing Tr. 29).)

noted

in

the

ALJ’s

Those contentions do

not warrant relief.
After

adopting

the

VE’s

testimony

regarding

three

jobs

available in significant numbers in the national economy that

16

Plaintiff could perform (see Tr. 28; see also Tr. 98-100, 341-43),
the ALJ provided the following discussion regarding time off-task
and absenteeism:
The [VE] opined that a minimum of 90[ percent]
productivity in an [eight]-hour workday, not including
the typical morning, lunch, and afternoon breaks[,] is
required to sustain unskilled competitive employment.
The [VE] also opined that a person could miss up to [one]
workday
a
month
and
still
maintain
competitive
employment.
Minimal productivity and missed workdays varies from [VE]
to [VE] because neither the [Dictionary of Occupational
Titles (“DOT”)] nor the [SCO] addresses the issue. Any
[VE’s] opinion on these issues is based on that [VE’s]
education, professional experience in placing individuals
in work, study of work surveys and other vocational
literature, and vocational conference attendance.
The [ALJ] was appointed an [ALJ] in August 2010 and has
taken testimony from [VEs] situated from Maine to
Florida, from the East Coast to California.
That
testimony has included a range of 80 [percent] to, in a
single instance 100[ percent] as the minimum productivity
required to sustain competitive employment. The majority
of the [VEs] have opined that 90 to 95[ percent] is the
minimum. [VE] testimony on toleration of missed workdays
varies widely, but averages [one] to [one and a half]
workdays a month.
Collectively, [VE] testimony shows
that 100[ percent] productivity and perfect attendance is
not required to engage in and maintain unskilled
competitive employment.
Because it would be speculative, the [ALJ] declines to
find with specificity the extent to which [Plaintiff’s]
productivity capacity is reduced by her physical and
mental impairments and pain, or how many workdays a month
[Plaintiff] would miss. The [ALJ] does not find that the
record supports the conclusion that the impairments’
symptoms cause exceptional functional limitations that
result in less than the average ranges discussed above.
(Tr. 28-29.)

17

Although Plaintiff argues that the ALJ erred by “failing to
include time off-task or absenteeism in his RFC finding” (Docket
Entry 12 at 7 (underscoring omitted)), Plaintiff did not pinpoint
any record evidence supporting such restrictions (see id. at 7-11).
In contrast, the ALJ provided substantial evidence to support his
conclusion that Plaintiff did not require greater time off-task and
absences from work than the tolerances of competitive employment.
At step three, the ALJ found that Plaintiff suffered only mild
deficit in her ability to concentrate, persist, or maintain pace (a
finding that Plaintiff did not challenge (see Docket Entry 12)),
noting that Plaintiff’s “unsupervised activities of daily living
consume a substantial part of her day, and they are no more than
‘mildly’ affected by her mental impairment.”

(Tr. 17.)

The ALJ

also observed that “[f]urther [mental] limitations [we]re not
supported due to the lack of mental health therapy notes or other
relevant objective medical evidence.”

(Tr. 27.)

Simply put,

Plaintiff has not shown that the record compelled the ALJ to adopt
time off-task and absenteeism limits beyond those tolerated in
unskilled, competitive employment.
Furthermore,

the

ALJ

did

not

err

by

considering

(and

discussing) the range of VE testimony regarding acceptable time
off-task

and

absenteeism

that

appointment as an ALJ in 2010.

the

ALJ

had

heard

since

his

(See Tr. 29.) “[B]efore relying on

VE . . . evidence to support a disability . . . decision, [ALJs]

18

must[

i]dentify

and

obtain

a

reasonable

explanation

for

any

conflicts between occupational evidence provided by VEs . . . and
information in the [DOT], . . . and [e]xplain in the . . . decision
how any conflict that has been identified was resolved.”

Security

Ruling 00-4p, Policy Interpretation Ruling: Titles II and XVI: Use
of Vocational Expert and Vocational Specialist Evidence, and Other
Reliable Occupational Information in Disability Decisions, 2000 WL
1898704, at *1 (Dec. 4, 2000) (“SSR 00-4p”) (emphasis added).
Here, because the DOT does not address time off-task or absenteeism
(which the ALJ expressly acknowledged (see Tr. 29)), the ALJ 1)
properly solicited VE testimony on those subjects (see Tr. 100),
and 2) fulfilled the duty imposed by SSR 00-4p to ensure that the
VE’s explanation qualified as reasonable by comparing the VE’s
testimony in this case with testimony from other VEs regarding
allowable time off-task and absenteeism (see Tr. 29).

The ALJ

ultimately concluded that 90 to 95 percent on-task (or five to ten
percent off-task) and one to one and a half absences per month
constituted the average limits of time off-task and absenteeism
permitted in unskilled, competitive employment.

(Id.)

The VE’s

testimony in this case that unskilled, competitive work allows for
“90 percent productivity” (or ten percent off-task) and one absence
per month (see Tr. 100) falls within the average range found by the
ALJ for such matters (see Tr. 29).

The ALJ thus did not err (and

certainly not in a manner that prejudiced Plaintiff) by discussing

19

the testimony of other VEs on the subjects of permissible time offtask and absenteeism.
Simply put, Plaintiff’s second issue on review falls short as
a matter of law.
3. Fibromyalgia
Lastly, Plaintiff faults the ALJ for “failing to find that
[Plaintiff’s] fibromyalgia is a severe impairment.”
12 at 11 (underscoring omitted).)

(Docket Entry

According to Plaintiff, “the

record contains clear evidence to support the rheumatologist’s
(Laura Black, M.D.) diagnosis of fibromyalgia syndrome” (id.),
because “substantial evidence of record supports that a diagnosis
of fibromyalgia is established under Social Security Ruling 12-2p[,
Titles II and XVI: Evaluation of Fibromyalgia, 2012 WL 3104869
(July 25, 2012) (“SSR 12-2p”)]” (id. at 12).6

Those assertions

ultimately miss the mark.
The Court need resolve neither the complex question of whether
Plaintiff’s fibromyalgia qualified as a medically determinable
impairment under SSR 12-2p, nor the related inquiry of whether her
fibromyalgia constituted a severe impairment.
erred

by

not

deeming

Plaintiff’s

Even if the ALJ

fibromyalgia

a

medically

determinable impairment and/or a severe impairment (see Tr. 15-16),
any such error remains harmless under the circumstances presented

6

The website for the Hunter-Hopkins Center, P.A. reflects that Dr. Black
obtained board certification in “Family Practice” and not rheumatology. See
https://drlapp.com/staff/ (last visited Aug. 16, 2019).

20

here, see Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989)
(observing that “[n]o principle of administrative law or common
sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a
different result”).

The ALJ limited Plaintiff to light work

involving only four hours of standing and/or walking, goal-based
work, no climbing of ladders, ropes, or scaffolds, occasional
balancing and stooping, occasional exposure to hazards, and no
operation of motor vehicles or heavy equipment to accommodate her
symptoms of fatigue, lethargy, and dizziness.

(See Tr. 18, 26.)

Notably, Plaintiff merely claimed that “additional limitations
arising from the diagnosis of fibromyalgia further erodes [sic]
[Plaintiff’s] RFC” (Docket Entry 12 at 12), and made no effort to
explain what additional limitations the ALJ should have included on
account

of

Plaintiff’s

fibromyalgia,

limitations already contained in the RFC.
relief.

beyond

the

significant

That failure precludes

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (“[A] litigant has an obligation to spell out its arguments
squarely and distinctly, or else forever hold its peace.” (internal
quotation marks omitted)); Hughes v. B/E Aerospace, Inc., No.
1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014)
(unpublished) (Schroeder, J.) (“A party should not expect a court
to do the work that it elected not to do.”); Nickelson v. Astrue,
No. 1:07CV783, 2009 WL 2243626, at *2 n.1 (M.D.N.C. July 27, 2009)

21

(unpublished)

(Dixon,

M.J.)

(“[A]s

[the

plaintiff]

failed

to

develop these arguments in his [b]rief, the [C]ourt will not
address them.”), recommendation adopted, slip op. (M.D.N.C. Sept.
21, 2009) (Schroeder, J.).
In

light

of

the

foregoing

analysis,

Plaintiff’s

final

assignment of error does not justify reversal or remand.
II.

CONCLUSION

Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Judgment on

the

Pleadings

(Docket

Entry

11)

be

denied,

that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 13)
be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 21, 2019

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