WESLEY v. SAUL

Filing 16

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 9/9/2021. 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 judgment be entered dismissing this action. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RODNEY WESLEY,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.1

)
)
)
)
)
)
)
)
)
)
)

1:20CV364

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rodney Wesley, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Plaintiff’s

claims

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 1.)

Defendant has filed the certified administrative record

(Docket Entry 9 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s Memorandum); Docket Entry 14 (Defendant’s Memorandum);
Docket Entry 15 (Plaintiff’s Reply)). For the reasons that follow,
the Court should enter judgment for Defendant.

1
President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting
Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for
Andrew M. Saul 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).

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 1 of 41

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 251-52) and SSI (Tr. 241-50),
alleging a disability onset date of March 20, 2016 (see Tr. 15,
241).
106,

Following denial of those applications initially (Tr. 85143-53)

and

on

reconsideration

(Tr.

107-138,

157-74),

Plaintiff requested a hearing de novo before an Administrative Law
Judge (“ALJ”)

(Tr.

175-77).

Plaintiff,

his

vocational expert (“VE”) attended the hearing.

attorney,

and a

(Tr. 33-84.)

The

ALJ subsequently ruled that Plaintiff did not qualify as disabled
under the Act. (Tr. 12-27.) The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-6, 236-40), 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:
1.

[Plaintiff] meets the insured status requirements of the
. . . Act through March 31, 2018.

2.

[Plaintiff] has not engaged in substantial gainful
activity since March 20, 2016, the alleged onset date.

. . .
3.

[Plaintiff] has the following severe impairments:
osteoarthritis to include his right hip; degenerative
disc disease; sciatica; insomnia; and anxiety disorder.

. . .
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.
2

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 2 of 41

. . .
5.

[Plaintiff] has the residual functional capacity to
perform light work . . . with the following limitations:
frequently push/pull and operate foot controls with the
right lower extremity; occasionally climb ramps or
stairs; occasionally climb ladders, ropes or scaffolds;
occasionally balance and crawl; frequently stoop, kneel
and crouch; frequently reach, handle objects and finger
bilaterally; occasionally reach overhead bilaterally;
occasional exposure to vibration; and frequent exposure
to unprotected heights, hazardous machinery or hazardous
moving mechanical parts. [Plaintiff]’s work is limited
to simple, routine and repetitive tasks, but not a
production rate pace and frequent interaction with the
public. [Plaintiff] would be off task no more than 10
percent of the time in an eight-hour workday, in addition
to normal breaks (with normal breaks defined as a 15minute morning and afternoon break and a 30-minute lunch
break).

. . .
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 on the national
economy that [he] can perform.

. . .
11.

(Tr.

[Plaintiff has not been] under a disability, as defined
in the . . . Act, from March 20, 2016, through the date
of this decision.

17-26

(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.”

Hines

3

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 3 of 41

v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). 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, “a

reviewing

of

court

must

uphold

the

factual

findings

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) (brackets and internal 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).

4

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 4 of 41

“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.
(quoting

42

U.S.C.

§

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

“To

regularize

2

the

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
(continued...)

5

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 5 of 41

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

a

claimant’s

age,

education,

and

work

experience

addition to [the claimant’s] medical condition.”

Id.

regulations

process’

establish

a

‘sequential

evaluation

in

“These
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
[(‘RFC’)] 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.’

2
(...continued)
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
[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 6 of 41

If the claimant is working, benefits are denied.
determines

if

the

claimant

benefits are denied.”

is

‘severely’

The second step

disabled.

If

not,

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 [RFC].”

Id. at 179.4

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can “perform past relevant
does not qualify as disabled.

work”; if so, the claimant

See 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

claimant’s

RFC]

and

[the

claimant’s]

vocational

capabilities (age, education, and past work experience) to adjust

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 workrelated 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

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 7 of 41

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 available in the
community,” the claimant qualifies as disabled. Hines, 453 F.3d at
567.5
B.

Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ err[ed] when he fail[ed] to resolve a conflict
in the VE testimony” (Docket Entry 12 at 6 (underscoring omitted));
2) “[t]he ALJ err[ed] when he fail[ed] to conduct a proper RFC
analysis” (id. (underscoring omitted));
3) “[t]he ALJ err[ed] by failing to properly consider medical
opinions in accordance with the [r]egulations” (id. (underscoring
omitted)); and
4) “[t]he [ALJ] err[ed] by failing to conduct proper analysis
of the consistency of [Plaintiff’s] allegations with the medical
and

other

evidence”

(id.

(underlining

and

internal

citations

omitted)).

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

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 8 of 41

Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(See Docket Entry 14 at 8-17.)
1. Internal Conflict in VE Testimony

Plaintiff asserts in his first assignment of error that the
ALJ erred by failing to resolve an internal conflict in the VE’s
testimony.
4-5.)

(See Docket Entry 12 at 6; see also Docket Entry 15 at

Specifically, Plaintiff contends that the VE testified both

that an individual off-task up to 10 percent of a workday could
perform certain jobs available in significant numbers in the
national economy

(see

Tr.

78-79)

and

that

an

individual

who

required two 10-minute breaks in addition to customary breaks could
not find competitive employment (see Tr. 80). (See Docket Entry 12
at 6-7.)

According to Plaintiff, “[t]hat contradiction in the

testimony was not resolved either in the decision or otherwise on
the record” and thus “the Commissioner has not met h[er] burden to
prove that there are significant numbers of jobs in the economy
under these conditions, and the decision must be vacated, reversed,
and remanded for a new hearing.”

(Id. at 7.)

For the reasons that

follow, Plaintiff’s arguments fall short.
Where, as in this case, “the claimant reaches step five, the
burden shifts to the [Commissioner] to produce evidence that other
jobs exist in the national economy that the claimant can perform
considering his [or her] age, education, and work experience.”
Hunter, 993 F.2d at 35.

“The Commissioner may meet this burden by

9

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 9 of 41

relying on the Medical–Vocational Guidelines (Grids) or by calling
a [VE] to testify.”

Aistrop v. Barnhart, 36 F. App’x 145, 146 (4th

Cir. 2002) (citing 20 C.F.R. § 404.1566).6

When, as here, the RFC

contains one or more non-exertional limitations, the Grids provide
only a framework for decision-making, and “the testimony of a VE is
normally required,” Hooper v. Heckler, 752 F.2d 83, 88 (4th Cir.
1985),

to

determine

the

extent

to

which

the

non-exertional

limitation(s) erode the applicable occupational base of available
jobs at a given exertional level, see Social Security Ruling 83-14,
Titles

II

and

XVI:

Medical-Vocational

Capability

Rules

as

a

to

Do

Framework

Other
for

Work

-

Evaluating

The
a

Combination of Exertional and Nonexertional Impairments, 1983 WL
31254, at *3-4 (1983) (“SSR 83-14”).
Here, in light of the non-exertional limitations in the RFC
(see Tr. 19-20 (reflecting limitations on postural and manipulative
movements, on exposure to vibration and certain workplace hazards,
to simple, routine and repetitive tasks not involving production
pace, on interaction with public, and on time off task)), the ALJ
relied upon Grid Rule 202.18 only as a framework for decision (see

6

“The Grids categorize jobs by their physical-exertion requirements,
namely, sedentary, light, medium, heavy, and very heavy. There are numbered
tables for the sedentary, light, and medium level (tables 1, 2, and 3,
respectively), and a specific rule for the heavy and very heavy levels. Based
on the claimant’s RFC, the ALJ must first determine which table to apply, i.e.,
if the claimant’s RFC limits him to a sedentary exertional level, then Table No.
1 is the appropriate table. Next, based on the claimant’s age, education, and
previous work experience, the [table or] rule directs a finding of ‘disabled’ or
‘not disabled.’” Black v. Astrue, No. 3:09CV599, 2010 WL 2306130, at *4 (E.D.
Va. Apr. 26, 2010) (unpublished) (internal citations and footnotes omitted),
recommendation adopted, 2010 WL 2306136 (E.D. Va. June 3, 2010) (unpublished).

10

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 10 of 41

Tr. 26), and called a VE to testify as to the impact of those
limitations on the light-exertion occupational base (see Tr. 26,
73-83).

As relevant to the instant assignment of error, the ALJ

asked the

VE if jobs existed in the national economy for a

hypothetical

individual

with

the

same

age,

education,

work

experience, and RFC as Plaintiff, including remaining off-task no
more

than

10

percent

of

the

exclusive of normal breaks.

time

in

an

(See Tr. 77.)

eight-hour

workday,

The VE responded that

a significant number of jobs existed in the national economy for a
person

with

such

limitations.

(Id.)

On

cross-examination,

Plaintiff inquired as to the same hypothetical person’s ability to
take “two additional ten minute[] breaks,” and the VE responded
that such unscheduled breaks “[we]re not tolerated” in unskilled
jobs and “would typically preclude work if they were occurring on
a regular basis.”
below,

(Tr. 80.)7

Plaintiff’s

For the reasons more fully detailed

contention

that

the

VE’s

above-described

testimony constitutes a “contradiction” warranting remand (Docket
Entry 12 at 7) fails for two reasons.

7
As Plaintiff notes (see Docket Entry 12 at 7 n.1), the RFC’s allowance
that Plaintiff remain “off task no more than 10 percent of the time in an eighthour workday, in addition to normal breaks” (Tr. 20) does not specify if the 10
percent applied to the full, eight-hour workday (48 minutes) in addition to the
one hour of normal breaks, for a total of one hour and 48 minutes off task, or
rather applied to the seven hours of work time exclusive of normal breaks (42
minutes), for a total of one hour and 42 minutes of time off task. (Tr. 19-20.)
The ALJ suggested in his questioning of the VE that the limitation applied
exclusive of normal breaks. (See Tr. 77.) However, the Court need not resolve
that ambiguity, as the same analysis applies irrespective of whether the RFC
allows for 48 minutes or 42 minutes of time off task in addition to normal
breaks.

11

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 11 of 41

First,

despite

examination,

having

Plaintiff’s

an

opportunity

counsel

for

neither

full

cross-

identified

the

“contradiction” about which he now complains nor asked the VE to
resolve the “contradiction” on the record. (See Tr. 79-83.) Under
such circumstances, Plaintiff has waived, in this Court, any
challenge to the VE’s testimony regarding a conflict between time
off-task and unscheduled breaks.
20-1899,

2021

WL

2173425,

See Coyier v. Saul, Civ. No.

at

*2

(7th

Cir.

May

27,

2021)

(unpublished) (holding that the plaintiff “waived any challenge to
the VE’s testimony by failing to ask any questions to reveal
shortcomings in the job-number estimates”); Coleman v. Colvin, Civ.
No. 0:14–2697, 2015 WL 5474674, at *19 (D.S.C. Sept. 16, 2015)
(unpublished) (“[T]he court is unpersuaded by [the plaintiff’s]
attempts to now challenge the [VE’s] testimony and the ALJ’s
findings and point out possible conflicts when none was raised
during the proceeding.”); Meyerink v. Colvin, No. 2:13CV327, 2015
WL 773041, at *14 (N.D. Ind. Feb. 24, 2015) (unpublished) (“[The
p]laintiff

also

contends

that

the

VE’s

testimony

is

further

undermined by an internal inconsistency. He points out that the VE
testified that there would be a twenty-five percent reduction in
the number of jobs to accommodate a sit/stand option.

The VE then

stated that there would be 1,500 small parts assembler jobs with a
sit/stand option, which was an increase, rather than a reduction,
from the original number of 1,000 sedentary small parts assembly

12

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 12 of 41

jobs. An ALJ’s reliance on imperfect VE testimony does not warrant
remand if, as here, a claimant does not question the basis for the
testimony at the time of the hearing.”);
1:10CV786,

2014

WL

639618,

at

*5

Bunton v. Colvin, No.

(M.D.N.C.

Feb.

18,

2014)

(unpublished) (finding waiver of issue on judicial review where the
plaintiff “failed to mount any opposition . . . to the view that he
retained the capacity to do the [jobs proffered by the VE], despite
. . . the opportunity . . . to question the VE about

. . . those

positions”), recommendation adopted, slip op. (M.D.N.C. Mar. 10,
2014) (Schroeder, J); Stepinski v. Astrue, Civ. No. 11-183, 2012 WL
3866678, at *9-10 (D.R.I. Aug. 6, 2012) (unpublished) (“The [c]ourt
views unfavorably the silence of [the p]laintiff’s counsel at the
hearing regarding the omission about which he now complains.
Reversal and remand . . . would encourage other counsel to remain
silent in similar circumstances.
provide such an incentive.

This [c]ourt is disinclined to

Accordingly, the [c]ourt finds that

[the p]laintiff waived this issue by failing to raise it before the
ALJ.” (internal citations omitted)), recommendation adopted, 2012
WL 3863812 (D.R.I. Sept. 5, 2012) (unpublished); Young v. United
States Comm’r of Soc. Sec., No. CV08-0474, 2009 WL 2827945, at *13
(W.D. La. Sept. 1, 2009) (unpublished) (“[C]laimants should not be
permitted to scan the record for implied or unexplained conflicts
. . ., and then present that conflict as reversible error, when the

13

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 13 of 41

conflict was not deemed sufficient to merit adversarial development
in the administrative hearing.”).
Moreover, Social 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 (Dec. 4, 2000) (“SSR 00-4p”),
does not alter the Court’s forfeiture analysis.
an

affirmative

duty

on

an

ALJ

to

SSR 00-4p places

independently

elicit

an

explanation from the VE as to any “apparent unresolved conflict”
between the VE’s testimony and the Dictionary of Occupational
Titles (“DOT”), SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added),
and thus, “a claimant does not forfeit or waive her right to raise
this particular issue before the district court if the claimant
failed to raise it at the ALJ hearing,” Weaver v. Colvin, No.
1:10CV582,

2013

WL

3989561,

at

*12

(M.D.N.C.

Aug.

2,

2013)

(unpublished) (Webster, M.J.), recommendation adopted, 2013 WL
4768178

(M.D.N.C.

Sept.

5,

2013)

(unpublished)

(Eagles,

J.).

Plaintiff has not, however, identified any authority burdening the
ALJ with an independent, affirmative duty to identify and resolve
all possible internal inconsistencies in the VE’s testimony and/or
precluding waiver/forfeiture outside the context of SSR 00-4p (see
Docket Entries 12, 15). See Unbehagen v. Saul, No. 1:18CV704, 2019
WL

4415149,

at

*7

(M.D.N.C.

Sept.

16,

2019)

(unpublished)

(rejecting the plaintiff’s argument that “no issue exhaustion

14

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 14 of 41

requirement

in

SSA

cases

[exists]

in

the

Fourth

Circuit”

as

“overstat[ing] the holding in Pearson[v. Colvin, 810 F.3d 204 (4th
Cir. 2015)]” which held, “in the specific context of SSR 00-4p,
. . . that claimants need not raise the issue of an apparent
conflict between the VE’s testimony and the DOT during the hearing
before the ALJ” (emphasis added) (citing Pearson, 810 F.3d at
209)), recommendation adopted, slip op. (M.D.N.C. Feb. 28, 2020)
(Tilley, S.J.); see also Webster v. Commissioner of Soc. Sec., 773
F. App’x 553, 555 (11th Cir. 2019) (“[D]uring the hearing, [the
plaintiff] did not question the VE’s qualifications and . . . did
not address his present concerns about the reliability of the VE’s
testimony. . . .

Further, to the extent that [the plaintiff]

argues that the ALJ was required to independently verify a VE’s
testimony, we have held that the ALJ is only required to do so when
there is a conflict between the VE’s testimony and the [DOT].”
(citing Washington v. Commissioner Soc. Sec., 906 F.3d 1353, 1365
(11th Cir.

2018)));

Beattie

v.

Astrue,

No.

5:09CV5,

2009

WL

4510117, at *10 (M.D. Fla. Dec. 1, 2009) (unpublished) (“SSR 00–04p
focuses

on

the

ALJ’s

obligation

to

independently

investigate

whether there is a conflict between the VE’s testimony and the
[DOT],

not

whether

the

VE’s

testimony

is

internally

inconsistent.”).
Second,

even

if

Plaintiff

had

not

waived

his

instant

challenge, his argument still falters, because Plaintiff has not

15

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 15 of 41

shown that the VE’s testimony in question even amounts to a
conflict.

The concepts of “time off-task” and “breaks” differ

significantly in their impact on worker productivity. For example,
“breaks” denote time physically away from the work station and
occur in continuous blocks of time, where a worker typically
remains unable to engage in his or her work duties.

In contrast,

“time off-task” can occur while an individual remains at the work
station and can happen intermittently, such as when a worker uses
his or her cell phone, talks with a co-worker, or otherwise
temporarily loses focus on the task at hand.

In other words,

unscheduled breaks detrimentally impact an employee’s productivity
in a manner that intermittent time off-task does not.

Thus, the

VE’s testimony on the one hand that employers would tolerate up to
10 percent of a workday off-task and on the other hand that two
unscheduled ten-minute breaks would preclude competitive employment
did not inherently conflict.
Furthermore, independent research reveals that cases where
courts have remanded due to an ALJ’s alleged failure to identify
and resolve internal inconsistencies in a VE’s testimony involve
actual

conflicts

that

remained

largely

irreconcilable

absent

further explanation. See, e.g., Kimbra L. v. Acting Comm’r of Soc.
Sec., No. 3:20CV6192, 2021 WL 3088713, at *4 (W.D. Wash. July 22,
2021) (unpublished) (“[T]he VE testified that . . . an employer can
typically tolerate one [absence] per month or one [absence] every

16

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 16 of 41

other month without termination of employment.

This response is

inconsistent with the previous unequivocal testimony by the VE that
one

with

absenteeism

of

one

time

per

month

could

maintain

competitive employment in the three identified jobs. . . . Indeed,
this portion of the VE’s testimony clearly indicates that some
employers will not tolerate the absenteeism the ALJ found that
[the] plaintiff suffered from as reflected in [the] plaintiff’s
RFC.

The [c]ourt therefore finds persuasive [the] plaintiff’s

argument that the VE did not provide job numbers for how many of
the jobs she named would accept one day a month of absenteeism and
how many would not[.] . . .

The ALJ’s reliance on one portion of

the VE testimony, while ignoring th[e] other portion, provided
minutes later, is not such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” (emphasis added,
internal citations and quotation marks omitted));

Michael D. v.

Commissioner of Soc. Sec., No. 3:19CV5137, 2020 WL 10088719, at *2
(W.D. Wash. Feb. 19, 2020) (unpublished) (“[T]he VE’s testimony was
internally inconsistent: it does not make logical sense that [the]
plaintiff would maintain the ability to perform this job if he was
limited to standing for anywhere from two to four hours, yet also
lack the ability to perform the same job if he was limited to
standing for only two hours.

The VE’s testimony could not support

a finding either way as to whether plaintiff could physically
perform the . . . job.

As a result, the ALJ lacked a substantial

17

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 17 of 41

evidentiary basis for finding that the plaintiff could perform his
past work . . . .” (emphasis added)), recommendation adopted, 2020
WL 1150988 (W.D. Wash. Mar. 9, 2020) (unpublished); Fister v.
Astrue, Civ. No. 11-01461, 2012 WL 4685358, at *26 (N.D. Cal. Sept.
30, 2012) (unpublished) (where the plaintiff testified that his
prior work as “head clerk” (which the VE classified as “grocery
clerk” in the DOT) constituted essentially the same job as his past
role as “department head” (which the VE categorized as “department
manager” in the DOT), the court found that “the VE’s testimony that
the

[plaintiff]

could

perform

the

grocery

clerk

job

[wa]s

inconsistent with [the VE’s] testimony that the [plaintiff] could
not perform the department head job. . . .

Because the VE’s

testimony was internally inconsistent, the ALJ’s reasoning was
flawed.” (emphasis added, internal citations and quotation marks
omitted)); Duran v. Astrue, 654 F. Supp. 2d 1298, 1304 (D. Colo.
2009) (“The VE defined production quota . . . as so many woodchips
or keystrokes per minute.

For instance in a factory assembly line

. . . you may have to do so many objects per minute or hour, or you
may have to keep up with the line . . . .

In terms of clerical

type positions, . . . they count the keystrokes or the words per
hour . . . .

Upon additional examination, the VE testified that a

maid would be required to clean a certain number of rooms per day
or hour. . . .

Neither the VE nor the ALJ explained how the job of

maid . . . would not be considered a job that required a production

18

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 18 of 41

quota in light of the [VE’s] definition . . . .

The ALJ’s failure

to reconcile this internal inconsistency shows the ALJ’s finding
that Plaintiff could perform the job of maid was not based upon
substantial evidence and the correct legal standards.” (internal
parenthetical citations and quotation marks omitted)). As the VE’s
testimony at issue here remains reconcilable on the existing
record, no basis exists for the Court to remand this matter.
Put simply, Plaintiff’s first assignment of error does not
warrant relief.
2. RFC Analysis
Plaintiff next contends that the ALJ “fail[ed] to conduct a
proper RFC analysis.” (Docket Entry 12 at 7 (underscoring omitted);
see also Docket Entry 15 at 1-4.)

Specifically, Plaintiff alleges

that the ALJ frustrated meaningful review when he failed to provide
a “logical bridge” from the evidence to his RFC conclusions.

(See

Docket Entry 12 at 8 (quoting Woods v. Berryhill, 888 F.3d 686, 694
(4th Cir. 2018), and citing Thomas v. Berryhill 916 F.3d 307, 311
(4th Cir. 2019).)

The Court should deny relief on this assignment

of error.
RFC measures the most a claimant can do despite any physical
and mental limitations.

See Hines, 453 F.3d at 562; see also 20

C.F.R.

416.945(a).

§§

claimant’s

404.1545(a),
exertional

and

An

ALJ

non-exertional

must

capacity

determine
only

a

after

considering all of a claimant’s impairments, as well as any related

19

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 19 of 41

symptoms, including pain.

See Hines, 453 F.3d at 562–63; see also

20 C.F.R. §§ 404.1545(b), 416.945(b).

The ALJ then must match the

claimant’s exertional abilities to an appropriate level of work
(i.e., sedentary, light, medium, heavy, or very heavy).
C.F.R. §§ 404.1567, 416.967.

See 20

Any non-exertional limitations may

further restrict a claimant’s ability to perform jobs within an
exertional level.

See 20 C.F.R. §§ 404.1569a(c), 416.969a(c).

An

ALJ need not discuss every piece of evidence in making an RFC
determination.

See Reid v. Commissioner of Soc. Sec., 769 F.3d

861, 865 (4th Cir. 2014).
evidence that

supports

accurate

logical

and

conclusion.”

However, “the ALJ must both identify

his

[or

bridge

her]

from

conclusion
that

and

evidence

build
to

an

[that]

Woods, 888 F.3d at 694 (internal emphasis, quotation

marks, and brackets omitted).
The

ALJ’s

RFC

determination

“must

include

a

narrative

discussion describing how the evidence supports each conclusion,
citing

specific

medical

facts

(e.g.

laboratory

findings)

and

nonmedical evidence (e.g. daily activities, observations).” Mascio
v. Colvin, 708 F. 3d 632, 636 (4th Cir. 2015).

“The 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.”
(4th Cir. 2013).

Radford v. Colvin, 734 F. 3d 288, 295

“[Fourth Circuit] precedent makes clear that it

is not [the Court’s] role to speculate as to how the ALJ applied

20

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 20 of 41

the law to its findings or to hypothesize the ALJ’s justifications
that would perhaps find support in the record.”
F. App’x 750, 755 (4th Cir. 2015).

Fox v. Colvin, 632

When an ALJ “leaves [the Court]

to wonder” how the ALJ reached his conclusions, the Court cannot
conduct meaningful review.

Id. (citing Mascio, 780 F.3d at 638).

For reasons detailed below, the ALJ satisfied the burdens
associated with explaining the RFC.
a. Time Off-Task RFC Limitation
Plaintiff first contends that the ALJ did not explain how he
reached his conclusion that Plaintiff would remain off-task no more
than 10 percent of an eight-hour workday in addition to normal
breaks.

(See Docket Entry 12 at 8 (citing Tr. 20-26).)

In that

regard, Plaintiff notes that “the phrase ‘off task no more than 10
percent of the time,’ or other similar phrase, appears once in the
decision: in the RFC statement itself.”

(Id. (citing Tr. 20).)

According to Plaintiff, “[t]h[at] failure of explanation requires
remand.” (Id. (citing Richardson v. Saul, No. 4:19CV128, 2020 WL
3816317,

at

*6

(E.D.N.C.

June

9,

2020)

(unpublished),

recommendation adopted, slip op. (E.D.N.C. Jul. 7, 2020); Patricia
W. v. Berryhill, No. 1:19CV9, 2019 WL 6790512, at *3 (D. Md. Dec.
12,

2019)

(unpublished)).)

Plaintiff

concedes

that

the

ALJ

provided a “thorough” and “detailed summary of the evidence” (id.
(citing Tr. 18-25)), but contends that “‘nothing within provide[d
a] narrative basis for the specific conclusion that the [p]laintiff

21

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 21 of 41

w[ould] be expected to be off task for ten percent of the workday’”
(id. (some internal quotation marks omitted) (quoting Michael K. v.
Social Sec. Admin., No. 18CV1038, 2019 WL 1501582, at *2 (D. Md.
Mar. 7, 2019) (unpublished), and citing Higgs v. Berryhill, No.
5:18CV22,

2019

WL

848730,

at

*4-5

(E.D.N.C.

Jan.

10,

2019)

(unpublished), recommendation adopted, 2019 WL 845406 (E.D.N.C.
Feb. 21, 2019) (unpublished))). Plaintiff maintains that the ALJ’s
decision instead, “without intervening explanation or rationale,
.

.

.

presents

its

conclusions

in

self-contained

generic

paragraphs” (id. at 9 (citing Tr. 21 (¶ 5), 23 (¶ 5), 24 (¶¶ 3, 5),
24-25, 25 (¶ 2))) which “fail[] to explain how this evidence
supports the RFC finding” (id. (citing Sterling Smokeless Coal Co.
v.

Akers,

131

F.3d

438,

439-40

(4th

Cir.

1997)

(“[S]imply

describing material evidence on the record . . . without explaining
how it relates to a claimant’s alleged impairments is tantamount to
ignoring it.”), DeLoatche v. Heckler, 715 F.2d 149, 150 (4th Cir.
1983), and McCain v. Colvin, No. 1:15CV99, 2016 WL 4487772, at *8
(M.D.N.C. Aug. 25, 2016) (Osteen, C.J.) (unpublished). Plaintiff’s
contentions miss the mark.
As a threshold matter, Plaintiff’s assertion that “the phrase
‘off task no more than 10 percent of the time,’ or other similar
phrase, appears once in the decision: in the RFC statement itself”
(Docket Entry 12 at 8 (citing Tr. 20)) falls short.

Towards the

end of the ALJ’s RFC analysis, he explained that Plaintiff’s

22

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 22 of 41

“mental

impairment

is

fully

accommodated

by

limiting

him

to

unskilled, non-production rate pace work, with social interaction
restrictions

and

an

allowance

for

time

off

task

(which

also

addresses his pain and the side effects of his medications).” (Tr.
24

(emphasis

added).)

Thus,

the

ALJ

made

clear

that

the

combination of Plaintiff’s anxiety, pain, and narcotic side effects
resulted in the off-task limitation.
Moreover, in the time off-task cases cited by Plaintiff, the
courts could not discern the basis for the ALJ’s very specific offtask limitation.

See Richardson, 2020 WL 3816317, at *6 (“[T]here

is no ‘logical bridge’ between the evidence and the conclusion that
[the plaintiff] would be off task up to nine percent of the
workday[.]” (emphasis added)); Patricia W, 2019 WL 6790512, at *3
(“[T]he ALJ failed to explain how he reached the conclusion of
10%[, and t]his [c]ourt is not in a position to determine, in the
first instance, whether [the p]laintiff would be off-task 10%, 15%,
5% or 13% of the time.”); Michael K., 2019 WL 1501582, at *2
(“Despite the ALJ’s extraordinarily thorough analysis of the case
as

a

whole,

nothing

within

provides

narrative

basis

for

the

specific conclusion that [p]laintiff will be expected to be off
task for ten percent of the workday” (internal quotation marks
omitted); Higgs, 2019 WL 848730, at *4-5 (finding that ALJ “did not
provide a narrative discussion describing how the evidence supports
[the off task] conclusion” and noting that “evidence indicate[d]

23

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 23 of 41

that [the plaintiff] would be off task more than ten percent of the
time” (internal quotation marks omitted)).

Notably, in one of the

above-cited cases, the ALJ found that the claimant would remain
off-task nine percent of an eight-hour workday, a precise number
which fell just below what the VE deemed work-preclusive.

See

Richardson, 2020 WL 3816317, at *7 n.2 (noting “curious nature of
the off-task figure” of nine percent).

In two others, the ALJ

assigned a fixed percentage (ten percent) of time off task.

See

Patricia W, 2019 WL 6790512, at *3; Michael K., 2019 WL 1501582, at
*2.

In the one case where the ALJ determined that the plaintiff

would remain off-task “no more than ten percent” of a workday, the
court actually found that the “evidence indicate[d] that [the
plaintiff] would be off task more than ten percent of the time.”
Higgs, 2019 WL 848730, at *4 (emphasis added).
Here, in contrast, the ALJ assigned neither an unusual nor a
fixed percentage of time Plaintiff would remain off-task, instead
finding that he “would be off task no more than 10 percent of the
time in an eight-hour workday.”

(Tr. 20 (emphasis added).)

In

other words, the ALJ found that Plaintiff’s mental impairment,
pain,

and

Plaintiff’s

narcotics
ability

side
to

effects
remain

caused

some

on-task,

but

limitations
not

in

disabling

limitations. (See Tr. 24 (“[T]he record documents that [Plaintiff]
suffers from physical and mental impairments which . . . do cause
certain limitations[; h]owever, the record does not establish that

24

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 24 of 41

[Plaintiff]’s limitations are disabling.”).)

This determination

coheres with the ALJ’s other findings that A) Plaintiff suffered
from severe anxiety disorder (see Tr. 17) that did not meet or
equal any listing (see Tr. 18-19); B) Plaintiff’s anxiety caused
him to have moderate (not marked or extreme) limitation in his
ability to concentrate, persist, and maintain pace (see Tr. 19);
and

C)

Plaintiff’s

“statements

concerning

the

intensity,

persistence and limiting effects of [his] symptoms” (Tr. 21),
including his testimony that “he had short-term memory issues and
that it was difficult for him to concentrate and focus” (id.; see
also Tr. 56), were “not entirely consistent with the medical
evidence and other evidence in the record” (Tr. 21).
Under such circumstances, the Court can trace the path of the
ALJ’s reasoning for finding Plaintiff would remain off-task for up
to 10 percent of a workday, and the Court should thus deny relief
on Plaintiff’s challenge to the ALJ’s off-task finding.

See Link

v. Saul, No. 1:19CV662, 2020 WL 5044038, at *9 (M.D.N.C. Aug. 26,
2020) (unpublished) (holding that ALJ’s findings at step two of
SEP, analysis of Plaintiff’s subjective symptom reporting, and
evaluation of objective evidence “adequately explained the RFC’s
allowance for [the p]laintiff to remain off-task for up to 10
percent

of

the

workday

in

addition

to

normal

breaks”),

recommendation adopted, slip op. (M.D.N.C. Sept. 10, 2020) (Biggs,
J.).

25

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 25 of 41

b. Treatment of Opinion Evidence
Plaintiff next avers that the ALJ formed “naked conclusions”
about

opinion

evidence.

(Docket

Entry

12

at

10.)

Plaintiff

specifically posits that the ALJ erred in affording limited weight
to orthopedist Dr. Peter Gilmer’s opinions that Plaintiff 1) “[wa]s
certainly likely not able physically to do the kind of work he used
to do” (id. (quoting Tr. 23); see also Tr. 512), and 2) “could not
return, for medical reasons, to his former work” (id. at 11 (citing
Tr. 24, 702)).

The ALJ afforded both of those opinions limited

weight, in part, because “[t]he limitations [we]re not expressed in
vocationally relevant terms.”

(Tr. 23, 24.)

Plaintiff insists

that the ALJ “did not explain” how Dr. Gilmer’s opinions qualified
as “vocationally irrelevant.”
quotation marks omitted).)

(Docket Entry 12 at 10 (internal

Plaintiff’s arguments lack merit.

The ALJ did not err in discounting Dr. Gilmer’s opinions based
on the absence of vocationally relevant terms (see Tr. 23, 24),
because the opinions provided no functional limitations arising
from Plaintiff’s impairments (see Tr. 512, 702).

See Gillis v.

Colvin, No. 1:14CV426, 2015 WL 4644777, at *6 (M.D.N.C. Aug. 4,
2015) (unpublished) (Webster, M.J.) (“[T]he ALJ accurately noted
that each report [of the consultative psychological examiner wa]s
. . . not expressed in vocationally relevant terms — that is,
neither report provide[d] functional limitations arising from [the
plaintiff’s] mental impairments.”), recommendation adopted, slip

26

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 26 of 41

op. (M.D.N.C. Aug. 26, 2015) (Schroeder, J.).

Thus, although Dr.

Gilmer opined that Plaintiff could not perform his past work, Dr.
Gilmer did not include any specific functional limitations that
could

inform

the

RFC

assessment.

(See

Tr.

512,

702.)

Consequently, the ALJ correctly determined that Dr. Gilmer failed
to offer an opinion in vocationally relevant terms.

(See Tr. 23,

24.)
Furthermore, even if Dr. Gilmer expressed his opinions in
vocationally relevant terms, any error by the ALJ in that regard
would remain harmless, see generally 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”),

as

the

ALJ

nevertheless found at step four of the SEP that Plaintiff could not
perform any of his past relevant work, i.e., the same conclusion
Dr. Gilmer reached in the opinions in question.

(Compare Tr. 25,

with Tr. 512, 702.)
In light of the foregoing analysis, Plaintiff’s second issue
on review does not entitle him to remand.8
8
In Plaintiff’s principal brief, he cited Thomas for the broad
propositions that “[a] proper RFC analysis has three components: (1) evidence,
(2) logical explanation, and (3) conclusion” and that “the ALJ’s logical
explanation[] is just as important as the other two [components].” (Docket Entry
12 at 8 (quoting Thomas, 916 F.3d at 311).)
In response, the Commissioner
discussed the holding in Thomas and contended that, “[u]nlike the ALJ’s cursory
analysis in Thomas, the ALJ provided ample discussion of how Plaintiff’s mental
impairments impacted his ability to perform work-relate tasks.” (Docket Entry
(continued...)

27

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 27 of 41

3. Opinion Evidence
In Plaintiff’s third issue on review, he again contends that
the ALJ erred in his evaluation of Dr. Gilmer’s opinions.
Docket Entry 12 at 12-14.)

(See

In particular, Plaintiff asserts that

the ALJ failed to properly evaluate Dr. Gilmer’s 1) March 2017
opinion that Plaintiff “‘[wa]s certainly likely not able physically
to do the kind of work he used to do’” (id. at 13 (quoting Tr.
820)), and 2) October 2018 opinion that Plaintiff “[wa]s likely to
have substantial limitations on what he can do” (id. (citing Tr.
537)).

For the reasons discussed in more detail below, Plaintiff

has not established error with respect to the ALJ’s evaluations of
either opinion.

8

(...continued)
14 at 10 (internal quotation marks and brackets omitted).) In Plaintiff’s Reply,
he summarily argues that all four “flaws” in the ALJ’s RFC analysis identified
by the Fourth Circuit exist in the instant matter. (See Docket Entry 15 at 2-4
(citing Thomas, 916 F.3d at 312).)
Regarding the first and second “flaws,”
Plaintiff does not make any argument as to why the ALJ’s limitations to SRRTs not
involving a production rate pace with frequent interaction with the public, as
well as an allowance to remain off-task for up to ten percent of the workday (see
Tr. 19-20), fail to address Plaintiff’s abilities throughout a workday and fails
to identify any specific mental health evidence the ALJ insufficiently
considered.
(See Docket Entry 15 at 3.)
Plaintiff’s conclusory argument
regarding the third “flaw” fails, because the ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [his] symptoms not
entirely consistent with the medical evidence and other evidence in the record”
(Tr. 21 (emphasis added)) and did not find that “limitations caused by
[Plaintiff]’s impairments were consistent with the [RFC]” (Docket Entry 15 at 4).
Plaintiff’s undeveloped contention regarding the fourth “flaw” founders, because
the ALJ did not use the phrase “production rate or demand pace” in the RFC but
rather precluded work “not at a production rate pace” (Tr. 19).
“That
distinction matters, as the phrase ‘production rate pace’ appears in the
definition of light work in the Dictionary of Occupational Titles (‘DOT’).” Shaw
v. Kijakazi, No. 1:20CV581, 2021 WL 3079905, at *7 (M.D.N.C. July 21, 2021)
(unpublished) (citing DOT, App’x C (“Components of the Definition Trailer”), § IV
(“Physical Demands - Strength Rating”), 1991 WL 688702), recommendation adopted,
slip op. (M.D.N.C. Aug. 23, 2021) (Osteen, J.).

28

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 28 of 41

a. March 2017 Opinion
Plaintiff first takes issue with the ALJ’s decision to afford
limited weight to Dr. Gilmer’s March 2017 opinion that Plaintiff
“[wa]s certainly likely not able physically to do the kind of work
he used to do.”
23).)

(Id. at 12 (quoting Tr. 820, and referencing Tr.

In particular, Plaintiff suggests that the ALJ failed to

consider the nature and extent of the treatment relationship
between Plaintiff and Dr. Gilmer (see id. at 13 (citing 20 C.F.R.
§§ 404.1527(c)(1)-(c)(6), 416.927(c)(1)-(c)(6))), and faults the
ALJ’s decision to afford Dr. Gilmer’s March 2017 opinion limited
weight because it “addressed the ultimate issue of returning to
work,” noting that the opinion “stop[s] well short of stating that
[Plaintiff] is ‘disabled’ or ‘unable to work,’ only venturing as
far as to say that [Plaintiff] could not perform the work he used
to do” (id. at 14).

Plaintiff’s contentions fail for three

reasons.
First, although an ALJ generally affords more weight to
medical

opinions

from

treating

sources,

see

20

C.F.R.

§§ 404.1527(c)(2)(i), 416.927(c)(2)(i) (“Generally, the longer a
treating source has treated [a claimant] and the more times [the
claimant has] been seen by a treating source, the more weight [an
ALJ] will give to the source’s medical opinion.”), when Dr. Gilmer
offered the March 2017 opinion, he had not yet established a
treating relationship with Plaintiff, because Dr. Gilmer offered

29

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 29 of 41

the

opinion

in

connection

appointment with him.

with

Plaintiff’s

(See Tr. 509.)

first

documented

Contrary to Plaintiff’s

argument (see Docket Entry 12 at 13 (citing Tr. 502, 508, 535, 538,
544, 553, 697)), Plaintiff’s seven subsequent visits with Dr.
Gilmer (see Tr. 502 (6/5/17), 508 (5/8/17), 535 10/5/18), 538
(9/19/18), 544 (8/8/18), 553 (3/19/18), 700 (11/28/18)) cannot
retroactively establish a treatment history to support opinions
made at Plaintiff’s first appointment with Dr. Gilmer in March
2017.9

Moreover, Plaintiff’s first appointment with Dr. Gilmer

consisted of a disability evaluation, reflecting the consultative
nature

of

the

appointment.

(See

Tr.

511.)

Consultative

examinations do not establish treatment relationships.

See 20

C.F.R. §§ 404.1527(c)(2), 416.927 (c)(2).
Second, whether a claimant remains able to work (whether past
relevant work

or

any

other

competitive

work

in

the

national

economy) constitutes an issue reserved for the Commissioner.

See

Presley v. Astrue, No. CIV.A. 07-2060, 2007 WL 4662108, at *4 (D.
Kan. Oct. 11, 2007) (unpublished) (holding that “[d]etermination of
issues reserved to the Commissioner, such as opinions regarding
. . . whether a plaintiff can do past relevant work . . ., will not
be

given

any

special

significance

or

controlling

weight”),

recommendation adopted, 2007 WL 4365434 (D. Kan. Dec. 12, 2007)

9
Plaintiff mis-cited the page of his office visit with Dr. Gilmer on
November 28, 2018 as appearing at page 697 of the administrative transcript.
(See Docket Entry 12 at 13 (citing Tr. 502, 508, 535, 538, 544, 553, 697).) That
record actually appears beginning at page 700. (See Tr. 700.)

30

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 30 of 41

(unpublished);

see

also

20

C.F.R.

§§

404.1527(d),

416.927(d)

(“Opinions on some issues . . . are not medical opinions . . . but
are, instead, opinions on issues reserved to the Commissioner . . .
A statement by a medical source that [a claimant is] . . . ‘unable
to work’ does not mean that [the Commissioner] will determine that
[the claimant is] disabled.”).

Thus, Dr. Gilmer’s March 2017

opinion that Plaintiff would “certainly likely not able to do the
kind of work he used to do” (Tr. 512) did not merit any special
significance,

see

Coleman

v.

Colvin,

No.

1:15CV751,

2016

WL

4223583, at *7 (M.D.N.C. Aug. 9, 2016) (unpublished) (Webster,
M.J.), recommendation adopted, 2016 WL 5372817 (M.D.N.C. Sept. 26,
2016) (unpublished) (Schroeder, J).
Third, as discussed above, Plaintiff has not shown how the
ALJ’s

decision

prejudicial

to

error.

discount
See

Dr.

Gilmer’s

generally

Fisher,

opinion
869

amounts

F.2d

at

to

1057

(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”). Despite affording Dr. Gilmer’s March 2017
opinion limited weight (see Tr. 23), the ALJ nevertheless found at
step four of the SEP that Plaintiff could not perform any of his
past relevant work, i.e., the same conclusion Dr. Gilmer reached in
his March 2017 opinion (compare Tr. 25, with Tr. 512).

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Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 31 of 41

In sum, Plaintiff has not established that the ALJ erred in
his evaluation of Dr. Gilmer’s March 2017 opinion.
b. October 2018 Opinion
Plaintiff next takes issue with the ALJ’s affording limited
weight to Dr. Gilmer’s October 2018 opinion.
at 13-14.)

(See Docket Entry 12

In particular, Plaintiff contends that “Dr. Gilmer

opined that [Plaintiff wa]s likely to have substantial limitations
on what he c[ould] do,” and argues that an MRI of Plaintiff’s
lumbar spine supported that opinion.

(Id. at 13 (emphasis added)

(citing Tr. 537).)
As an initial matter, Plaintiff misquotes Dr. Gilmer’s October
2018 opinion.

Dr. Gilmer actually opined that Plaintiff should

“remain active” and would “likely [] have limitations on how much
he can do and for how long” and did not indicate that Plaintiff
would have “substantial” limitations.

(Tr. 537.)

Moreover, as recognized by the ALJ (see Tr. 24), Dr. Gilmer’s
opinion qualifies as vague.

Vagueness constitutes a permissible

grounds for an ALJ to discount a medical opinion.

See Gallardo v.

Berryhill, No. 1:16CV355, 2017 WL 1409575, at *7 (M.D.N.C. Apr. 20,
2017)

(unpublished),

recommendation

adopted,

2017

WL

2623884

(M.D.N.C. June 16, 2017) (unpublished) (Schroeder, J.) (citing
Rogers v. Commissioner of Soc. Sec. Admin., 490 F. App’x 15, 17
(9th Cir. 2012) (concluding ALJ properly discounted as equivocal
physician’s opinion that a claimant “might be unable to deal with

32

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 32 of 41

the usual stress encountered in the workplace” (emphasis added))).
Dr. Gilmer equivocated by opining that “[Plaintiff wa]s likely to
have limitations on how much he can do and for how long” (Tr. 537
(emphasis added)), and his opinion neither contained an explanation
as to which activities Plaintiff’s condition limited nor described
the length of time Plaintiff could engage in such activities, see
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3) (stating that the better
explanation a source provides for an opinion, the more weight the
Commissioner

gives

that

opinion);

see

generally

Briggs

v.

Berryhill, No. 1:18CV217, 2019 WL 568571, at *4 (M.D.N.C. Feb. 12,
2019) (unpublished) (Webster, M.J.); Foltz v. Colvin, No. 1:14CV55,
2015 WL 339654, at *5 (M.D.N.C. Jan. 23, 2015) (unpublished)
(Webster, M.J.), recommendation adopted, slip op. (M.D.N.C. Feb.
18, 2015) (Beaty, Jr., J.).
Furthermore, Dr. Gilmer neither specified whether he meant to
describe a permanent or temporary limitation, nor supported his
statement with examples of specific objective findings which led
him to his opinion.

(See Tr. 537.)

Instead, Dr. Gilmer recognized

that Plaintiff had good clinical strength in both legs and moved
independently and, in the sentence preceding Dr. Gilmer’s opinion
at

issue,

expressed

opined
doubt

that
that

Plaintiff
Plaintiff’s

did

not

pain

require

would

surgery

benefit

from

and
an

epidural injection. (See id.) Subsequently, Dr. Gilmer noted that
“[a]

formal

Functional

Capacity

Evaluation

could

be

done

33

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 33 of 41

if

assessment of [Plaintiff’s] exact work potential is required.”
(Id.) Dr. Gilmer, therefore, buffered his opinion with his general
thoughts on Plaintiff’s condition and the possibility of a more
precise evaluation, thereby underscoring the lack of specificity of
his opinion.
Plaintiff further attacks the ALJ’s assignment of limited
weight to Dr. Gilmer’s October 2018 opinion because “‘the opinion
addresse[d] the ultimate issue of disability (return to work), an
issue reserved to the SSA Commissioner.’”
(quoting Tr. 24 (¶ 5)).)
October

2018

opinion

(Docket Entry 12 at 13

According to Plaintiff, Dr. Gilmer’s

“stop[s]

well

short

[Plaintiff] is ‘disabled’ or ‘unable to work.’”
at 14.)

of

stating

that

(Docket Entry 12

Plaintiff’s argument fails, because the ALJ did not

discount Dr. Gilmer’s October 2018 opinion as involving “an issue
reserved to the SSA Commissioner” (id. at 13).
properly

assigned

that

opinion

“limited

Rather, the ALJ

weight”

because

it

qualified as “vague” and because it “contain[ed] no vocationally
relevant functional limitations.”

(Tr. 24.)10

10

Plaintiff’s challenge to the ALJ’s assignment of limited weight to Dr.
Gilmer’s October 2018 opinion because “‘the opinion addresse[d] the ultimate
issue of disability (return to work), an issue reserved to the SSA Commissioner’”
cites to paragraph 5 of page 24 of the administrative transcript. (Docket Entry
12 at 13 (quoting Tr. 24 (¶ 5)).) However, that paragraph actually contains the
ALJ’s evaluation and weighing of Dr. Gilmer’s November 2018 opinion that
Plaintiff’s “problems with his lower back w[ould] likely preclude him from doing
[his prior construction work],” that “he could do a lighter job if such were
available,” and that he “might not be an appropriate candidate for some types of
retraining” because of a “learning disability.” (Tr. 24 (referencing Tr. 702).)
Dr. Gilmer further “indicated that he supported [Plaintiff]’s application for
disability on the basis that he could not return, for medical reasons, to the
type of work that he had done all of his life.” (Id.) The ALJ did discount Dr.
(continued...)

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In short, the Court should deny relief on Plaintiff’s third
assignment of error.
4. Subjective Symptom Reporting
Lastly,
fail[ed] to

Plaintiff

contends

conduct

proper

a

that

“[t]he

analysis

of

[ALJ’s]

the

decision

consistency

of

[Plaintiff’s] allegations with the medical and other evidence.”
(Docket Entry 12 at 15 (citing Tr. 20-25); see also Docket Entry 15
at

5-6.)

Specifically,

Plaintiff

alleges

that

the

ALJ’s

conclusions are “bereft . . . of references to the record” and
amount to “a ‘cut and paste’ method of decision writing.”

(Docket

Entry 12 at 15 (citing Manns v. Colvin, No. 1:15CV133, 2015 WL
5821245 at *4-5 (M.D.N.C. Oct. 5, 2015) (unpublished) (Eagles,
J.).)

According to Plaintiff, the ALJ’s entire evaluation of

Plaintiff’s subjective symptom reporting consists of the following
paragraph:
In
sum,
[Plaintiff’s]
statements
concerning
the
intensity, persistence and limiting effects of his
symptoms are not supported by the overall evidence of
record to the extent they purport to limit him more than
that provided for in the [RFC] herein. Given all of the
evidence, to include [Plaintiff’s] testimony, the [ALJ]
concludes that the above [RFC] fully accommodates all of
[Plaintiff’s] physical and mental impairments, severe and
non-severe, alone and in combination, to include all
associated symptoms and limitations.

10

(...continued)
Gilmer’s November 2018 opinion, in part, because it “addresse[d] the ultimate
issue of disability (return to work), an issue reserved to the SSA Commissioner”
(id.) and, as that opinion very clearly references Plaintiff’s ability to work,
the ALJ did not err in doing so.

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Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 35 of 41

(Id. (quoting Tr. 25).)

Plaintiff further maintains that the ALJ

made a “bare conclusion in evaluating the intensity, persistence
and limiting effects of symptoms [which] is insufficient by SSA’s
standards . . . .”

(Id. at 16 (citing Social Security Ruling 16-

3p: Titles II and XVI: Evaluation of Symptoms in Disability Claims,
2016 WL 119029, at *9 (Mar. 16, 2016) (“SSR 16-3p”) (providing that
“it is not enough for [ALJs] to make . . . conclusory statement[s]
. . . [or for ALJs] to recite the factors described in the
regulations for evaluating symptoms”)).)

Plaintiff’s contentions

warrant no relief.
SSR 16-3p (consistent with the Commissioner’s regulations)
adopts a two-part test for evaluating a claimant's statements about
symptoms.

See SSR 16-3p, 2017 WL 5180304, at *3; see also 20

C.F.R. §§ 404.1529, 416.929. First, the ALJ “must consider whether
there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an
individual’s symptoms, such as pain.”

SSR 16-3p, 2017 WL 5180304,

at *3. A claimant must provide “objective medical evidence from an
acceptable medical source to establish the existence of a medically
determinable

impairment

that

could

produce [the] alleged symptoms.”
consists

of

medical

signs

Id.

reasonably

be

expected

to

Objective medical evidence

(“anatomical,

physiological,

or

psychological abnormalities established by medically acceptable
clinical diagnostic techniques”) and laboratory findings “shown by

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Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 36 of 41

the use of medically acceptable laboratory diagnostic techniques.”
Id.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
at *4.

See id.

In making that determination, the ALJ must “examine the

entire case record, including the objective medical evidence; an
individual’s

statements

about

the

intensity,

persistence,

and

limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.”

Id.

Where

relevant, the ALJ will also consider the following factors in
assessing the extent of the claimant’s symptoms at part two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and

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Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 37 of 41

7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8.

The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms
solely because the objective medical evidence does not substantiate
the

degree

individual.”

of

impairment-related

symptoms

Id. at *5 (emphasis added).

alleged

by

the

When evaluating a

claimant’s subjective complaints about their symptoms, however, the
ALJ need not take those complaints “‘at face value.’”

Squires v.

Colvin, No. 1:16CV190, 2017 WL 354271, at *5 (M.D.N.C. Jan. 24,
2017) (unpublished) (quoting Ramos-Rodriguez v. Commissioner of
Soc. Sec., Civ. No. 11-1323, 2012 WL 2120027, at *3 (D.P.R. June
11,

2012)

(unpublished)),

recommendation

adopted,

slip

op.

(M.D.N.C. Mar. 6, 2017) (Schroeder, J.).
The ALJ in this case discussed Plaintiff’s testimony at length
(see Tr. 20-21), and noted Plaintiff’s subjective complaints of
pain in his neck, back, shoulders, hips, knees, feet, right elbow,
hands, and thumbs (see Tr. 20-24).

The ALJ found at part one of

the analysis that Plaintiff’s “medically determinable impairments
could reasonably be expected to cause the alleged symptoms,” but
found at part two that his “statements concerning the intensity,
persistence and limiting effects of th[o]se symptoms [we]re not
entirely consistent with the medical evidence and other evidence in
the record for the reasons explained in th[e] decision.” (Tr. 21.)

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As discussed in more detail below, the ALJ supported that finding
with substantial evidence.
With regard to Plaintiff’s treatment history, the ALJ noted
that Plaintiff’s symptoms and physical examinations remained within
normal limits from May 2016 through January 2017. (Tr. 22 (citing
Exs. 2F, 17F, 18F); see also Tr. 642-98.)

The ALJ recognized

further that Plaintiff’s condition remained stable throughout 2018
(id. (citing Exs. 2F, 6F, 7F, 18F)), though Plaintiff took his
medications in a manner not prescribed (id. (citing Ex. 20F); see
also Tr. 406, 658, 715.)

The ALJ additionally pointed to a

physical examination which reflected that Plaintiff “was able to
walk independently and did not limp walking short distances,” “was
able to heel and toe walk,” “could touch the midway point between
his knee and ankle” on forward flexion, and “had good clinical
strength in both legs.”
512.)

(Tr. 23 (citing Ex. 10F); see also Tr.

The ALJ further emphasized that “[t]he examination did not

suggest acute synovitis in either [Plaintiff’s] upper or lower
extremities, specifically his hands and feet.”
10F); see also Tr. 512.)

(Id. (citing Ex.

Furthermore, the ALJ reported that “[x]-

rays of [Plaintiff’s] lumbar spine showed normal bony architecture,
with only slight narrowing in the intervertebral disc space.

He

had some early anterior marginal osteophytes present, with no
evidence

of

inflammatory

changes.”

(Id.

(emphasis

added).)

Despite Plaintiff’s osteoarthritis diagnosis in October 2017, the

39

Case 1:20-cv-00364-NCT-LPA Document 16 Filed 09/09/21 Page 39 of 41

ALJ noted Plaintiff’s “[n]eurologic testing demonstrated grossly
intact strength in both legs with no atrophy present,” and that
Plaintiff received a steroid injection in August 2018.
(citing Exs. 12F, 25F); see also Tr. 544, 546, 829.)

(Tr. 23-24
The ALJ

additionally acknowledged Dr. Gilmer’s opinion that Plaintiff’s
condition did not warrant surgery.

(Tr. 24 (citing Ex. 12F); see

also Tr. 537.)
Concerning

Plaintiff’s

daily

activities,

the

ALJ

noted

Plaintiff’s testimony that he cared for his teenage son by cooking
and cleaning for him, regularly attended Sunday church services,
and regularly visited with his three young grandchildren at his
home.

(Tr. 21; see also Tr. 60-65.)

The ALJ further noted that

“[Plaintiff] was able to drive, grocery shop, pay bills, count
change, handle a savings account, and use a checkbook.”

(Tr. 18-

19.) Those significant and varied daily activities provide support
for the ALJ’s conclusion that Plaintiff’s statements about the
intensity of his symptoms lacked consistency with the record. (See
Tr. 21.)
After reviewing and summarizing Plaintiff’s testimony and the
medical evidence, the ALJ concluded that Plaintiff’s subjective
statements lacked consistency with the entire record.

(Tr. 25.)

The ALJ, therefore, conducted a proper review of Plaintiff’s
subjective symptoms and supported with substantial evidence his
conclusion to not fully credit those complaints.

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In light of the foregoing analysis, the Court should deny
relief

on

Plaintiff’s

challenge

to

the

ALJ’s

analysis

of

Plaintiff’s subjective symptom reporting.
III.

CONCLUSION

Plaintiff has not established an error warranting remand.
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 judgment be entered dismissing this action.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 9, 2021

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