CRABTREE v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANGELA CRABTREE, )

)

Plaintiff, )

)

v. ) 1:18CV466

)

ANDREW M. SAUL, )

Commissioner of Social Security,1 )

)

Defendant. )

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 Memorandum); Docket Entry 14

(Defendant’s Memorandum)). 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.” Hines 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,

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). “Tf there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

is substantial evidence.” Hunter, 993 F.2d at 34 (internal

quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the 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 medical-

vocational 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. 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

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 in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.5

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) 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.” (Docket

Entry 12 at 4 (underscoring omitted).) 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. (Id. at 6

(referencing Tr. 770-79).) Plaintiff further maintains 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] 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).) Plaintiff’s contentions

fall short.

9

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.). However, the ALJ must nevertheless evaluate

consultative 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 □□□

(“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 examination (“CPE”) of Plaintiff (Tr. 774-79),

reporting Plaintiff’s diagnosis as “[m]ajor [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 Work-

Related 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 work-

related 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. In that

12

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. (See Docket Entry

12.) 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.” (Docket

Entry 12 at 6 (referencing Tr. 772).) However, the definition of

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

770.) According to the MSS, a “[m]arked” restriction means

“serious limitation” and “substantial loss in the ability to

effectively function,” whereas the MSS defines an “[e]xtreme”

restriction as “major limitation” and “no useful ability to

function.” (Id. (emphasis added).) 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 and on-task as required by competitive

employment.” (Docket Entry 12 at 7 (underscoring omitted).) More

specifically, Plaintiff faults the ALJ for “us[ing] his own self-

developed 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 time off-task also] noted in the ALJ’s

[decision].” (Id. (referencing Tr. 29).) 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 the ALJ had heard since his

appointment as an ALJ in 2010. (See Tr. 29.) “[B]efore relying on

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

18

must[ i]ldentify 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 IIT 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 off-

task 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.” (Docket Entry

12 at 11 (underscoring omitted).) 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. Even if the ALJ

erred by not deeming Plaintiff’s 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).

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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, beyond the significant

limitations already contained in the RFC. That failure precludes

relief. 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)

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(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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