HUGHES v. SAUL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

AARON MATHEW HUGHES, )

)

Plaintiff, )

)

v. ) 1:20CV547

)

ANDREW M. SAUL, )

Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Aaron Mathew Hughes, 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, determining that Plaintiff’s entitlement to Supplemental

Security Income (“SSI”) ended on April 1, 2016. (Docket Entry 1.)

Defendant has filed the certified administrative record (Docket

Entries 8, 12 (cited herein as “Tr. __”)), and both parties have

moved for judgment (Docket Entries 10, 14; see also Docket Entry

11 (Plaintiff’s Memorandum); Docket Entry 15 (Defendant’s

Memorandum)). For the reasons that follow, the Court should enter

judgment for Defendant.

I. PROCEDURAL HISTORY

Plaintiff applied for SSI, alleging a disability onset date

of September 4, 2006. (See Tr. 483.) Upon denial of that

application initially and on reconsideration (see id.), Plaintiff

requested a hearing de novo before an ALJ (see id.). Plaintiff

(represented by counsel), his mother LeeAnne Hughes, and a

vocational expert (“VE”) testified at the hearing. (Tr. 84-115.)

On November 8, 2012, the ALJ determined that Plaintiff qualified

as disabled under the Act as of September 30, 2010, but recommended

a Continuing Disability Review (“CDR”) within 24 months. (Tr.

480-90.)

On May 2, 2016, the Social Security Administration (“SSA”)

sent Plaintiff a Notice of Disability Cessation advising him that,

as a result of the CDR which showed medical improvement in his

condition, he stopped qualifying for SSI as of April 2016. (Tr.

137-39; see also Tr. 116-34.) Following denials of his challenge

to that determination at the reconsideration level (Tr. 135, 140-

41, 349-77) and by a Disability Hearing Officer (Tr. 145-54),

Plaintiff sought a hearing before an ALJ (Tr. 157).

A new ALJ held a hearing, at which Plaintiff (proceeding

through counsel), Plaintiff’s mother, and a VE testified. (Tr.

30-83.) The ALJ then determined that Plaintiff’s disability ended

as of April 1, 2016 (Tr. 9-25), and Plaintiff requested review

with the Appeals Council (Tr. 230-33, 318-21). The Appeals Council

thereafter denied Plaintiff’s request for review (Tr. 1-6), making

the ALJ’s ruling the Commissioner’s final decision for purposes of

judicial review.

2

In rendering that decision, the ALJ made the following

findings:

1. The most recent favorable medical decision finding

that [Plaintiff] was disabled is the decision dated

November 8, 2012. This is known as the “comparison point

decision” or CPD.

2. At the time of the CPD, [Plaintiff] had the

following medically determinable impairments: epilepsy

and anxiety. These impairments were found to result in

the residual functional capacity to perform medium work

except that he would have been off-task for more than

20% of the workday.

. . .

3. The medical evidence establishes that [Plaintiff]

did not develop any additional impairments after the CPD

through April 1, 2016. Thus, [Plaintiff]’s current

impairments are the same as the CPD impairments.

4. Since April 1, 2016, [Plaintiff] has not had an

impairment or combination of impairments which meets or

medically equals the severity of an impairment listed in

20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. Medical improvement occurred as of April 1, 2016.

. . .

6. . . . [B]eginning on April 1, 2016, [Plaintiff] has

had the residual functional capacity to perform medium

work . . . except he is capable of occasional work around

exposure to bright lights, such as outdoor sunlight but

not flashing lights and no fluorescent light with work

tasks indoors or indoor lighting can be accommodated

with sunglasses. He [] is limited to no climbing of

ladders, ropes, or scaffolds as well as no exposure to

unprotected heights, moving mechanical parts or

hazardous work settings; and no concentrated exposure to

extremely hot or humid working environments. He is also

limited to simple, routine, and repetitive tasks with

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the ability to remain on task for two hours at a time

before needing a fifteen minute break throughout a

normal work day with a low level of work pressure defined

as work not requiring multitasking, production rate

pace, assembly line work, or team work to complete a

task. He can understand, remember, and follow simple

instructions; is limited to frequent interaction with

coworkers and supervisors but no more than occasional

interaction with the public; can make simple work-

related decision[s] and adapt to simple and routine

changes in the work setting; and would likely miss work

on an unscheduled basis two times per year.

. . .

7. [Plaintiff]’s medical improvement is related to the

ability to work because it has resulted in an increase

in [Plaintiff]’s residual functional capacity.

. . .

8. Beginning on April 1, 2016, [Plaintiff]’s

impairments has [sic] continued to be severe.

. . .

9. [Plaintiff] has no past relevant work.

. . .

13. Beginning on April 1, 2016, considering [Plaintiff]’s

age, education, work experience, and residual functional

capacity, [Plaintiff] has been able to perform a significant

number of jobs in the national economy.

. . .

14. [Plaintiff]’s disability ended on April 1, 2016,

and [Plaintiff] has not become disabled again since that

date.

(Tr. 13-25 (bold font and internal parenthetical citations

omitted).)

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II. DISCUSSION

Federal law “authorizes judicial review of the Social

Security Commissioner’s denial of social security benefits.”

Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However,

“the scope of . . . review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead,

“a reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

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there is evidence to justify a refusal to direct a verdict were

the case before a jury, then there is substantial evidence.”

Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should

not undertake to re-weigh conflicting evidence, make credibility

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

as adopted by the Social Security Commissioner].” Mastro, 270

F.3d at 176 (internal brackets and quotation marks omitted).

“Where conflicting evidence allows reasonable minds to differ as

to whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76

F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that,

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,’” Hall v.

6

Harris, 658 F.2d 260, 264 (4th Cir. 1981) (quoting 42 U.S.C.

§ 423(d)(1)(A)).1 “To regularize the adjudicative process, the

[SSA] has . . . promulgated . . . 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.

After a claimant qualifies for benefits under the Act, no

presumption of continuing disability exists, see 42 U.S.C.

§ 423(f)(4); rather, the decision to award benefits remains

subject to a periodic CDR, 20 C.F.R. § 404.1589. The SSA utilizes

the prior determination granting benefits — the CPD — as a

reference to evaluate whether any medical improvement has occurred

relating to the claimant’s ability to work. See 42 U.S.C.

§ 423(f); 20 C.F.R. § 404.1594. To make this determination, the

Commissioner employs a seven-step sequential evaluation process

(“SEP”):

1) Do the claimant’s impairments meet or medically equal

the severity of any listed impairments in 20 C.F.R. Pt.

404, Subpt. P, App’x 1?

1 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).

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2) If not, has there been any medical improvement in the

severity of the claimant’s impairments?

3) If medical improvement has occurred, does such

improvement relate to the claimant’s ability to work?

4) If no medical improvement has occurred, does an

exception apply?

5) If medical improvement relates to the claimant’s

ability to work, do the claimant’s current impairments,

singly or in combination, qualify as severe?

6) If severe impairments exist, does the claimant’s

residual functional capacity (“RFC”) permit the

performance of past relevant work?

7) If not, does the claimant have the RFC to perform

other work existing in significant numbers in the

national economy?

20 C.F.R. § 416.994(b)(5).2 If the Commissioner finds conclusively

that a claimant qualifies as disabled at any point in this process,

review does not proceed to the next step. See id.

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

2 “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.

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1) “[t]he ALJ improperly discounted [Plaintiff’s] subjective

complaints of medication side effects, contrary to the [SSA]’s

regulations and longstanding precedent” (Docket Entry 11 at 6 (bold

font and single-spacing omitted));

2) “[t]he ALJ’s RFC explanation frustrates meaningful review

and is not supported by substantial evidence” (id. at 8 (bold font

and single-spacing omitted)); and

3) “[t]he Commissioner failed to his [sic] burden at step

five of the [SEP] because he failed to identify and resolve all

apparent conflicts of the VE’s testimony with the [Dictionary of

Occupational Titles (‘DOT’)]” (id. at 18 (bold font and single-

spacing omitted)).

Defendant contends otherwise and seeks affirmance of the

ALJ’s decision. (See Docket Entry 15 at 15-36.)

1. Subjective Complaints of Medication Side Effects

In Plaintiff’s first assignment of error, he contends that

“[t]he ALJ improperly discounted [Plaintiff’s] subjective

complaints of medication side effects, contrary to the [SSA]’s

regulations and longstanding precedent.” (Docket Entry 11 at 6

(bold font and single-spacing omitted).) More specifically,

Plaintiff maintains that, by finding that “‘the extent of

[Plaintiff]’s alleged side effects [we]re not supported by the

treatment notes of record’” (id. at 8 (quoting Tr. 20)), the ALJ

9

“‘improperly increased [Plaintiff’s] burden of proof’” (id. at 7

(quoting Lewis v. Berryhill, 858 F.3d 858, 866 (4th Cir. 2017)))

by requiring objective evidence to support his subjective

complaints of medication side effects (id. at 8 (citing Tr. 20)).

According to Plaintiff, he could “‘rely exclusively on subjective

evidence to prove’ his medication side effects were ‘so continuous

and/or so severe that [they] prevent[ed] him from working a full

eight hour day.’” (Id. (quoting Hines, 453 F.3d at 565 (certain

brackets omitted))).) For the reasons discussed below,

Plaintiff’s contentions lack merit.

Social Security Ruling 16-3p, Titles II and XVI: Evaluation

of Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,

2017) (“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. § 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

reasonably be expected to produce [the] alleged

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symptoms.” Id. Objective medical evidence consists of medical

signs (“anatomical, physiological, or psychological abnormalities

established by medically acceptable clinical diagnostic

techniques”) and laboratory findings “shown by 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. See id. at *4. 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

. . . 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 . . . symptoms;

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5. Treatment, other than medication, an individual

receives or has received for relief of . . . symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve . . . symptoms . . .; and

7. Any other factors concerning an individual’s

functional limitations and restrictions due to . . .

symptoms.

Id. at *7-8.

As an initial matter, Plaintiff overstates the reach

of Hines. That case holds only that, at part two of the subjective

symptom assessment, “subjective evidence of the pain, its

intensity or degree can, by itself, support a finding of

disability.” Hines, 453 F.3d at 563 (emphasis added). In other

words, under the appropriate circumstances, an ALJ may choose to

rely exclusively on a claimant’s subjective complaints to find

disabling pain at part two of the assessment. However, Hines does

not compel ALJs to consider only subjective evidence at part two,

as such a requirement would conflict with the regulations, which

plainly require ALJs to consider a variety of factors, including

objective medical evidence, in evaluating the intensity,

persistence, and limiting effects of symptoms. See 20 C.F.R.

§ 416.929(c) (directing ALJs to assess a claimant’s medical

history, medical signs and laboratory findings, daily activities,

testimony about nature and location of pain, medication and other

treatment used to alleviate pain, along with medical opinions from

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examining and non-examining sources). As the analysis below

details, the ALJ’s evaluation of Plaintiff’s subjective symptom

reporting complies with SSR 16-3p and the applicable regulations.

The ALJ discussed Plaintiff’s statements on Disability

Reports as well as hearing testimony from Plaintiff and his mother

(see Tr. 16-17), specifically noting Plaintiff’s assertion that

“he has side effects from medication including extreme drowsiness,

frequent naps, lapses in thoughts, and difficulty remembering

certain things” (id.), as well as that “some of those side effects

have gotten worse” (Tr. 17). The ALJ then found at part one of

the subjective symptom analysis that Plaintiff’s “medically

determinable impairments could reasonably be expected to produce

the alleged symptoms” but found, at part two, that Plaintiff’s

“statements concerning the intensity, persistence and limiting

effects of th[o]se symptoms [we]re not credible to the extent they

[we]re inconsistent with the [RFC] assessment for the reasons

explained” in the ALJ’s decision. (Tr. 18.)3

3 Although not argued by Plaintiff (see Docket Entry 11), the ALJ’s finding that

Plaintiff’s “statements concerning the intensity, persistence and limiting

effects of [his] symptoms [we]re not credible” (Tr. 18 (emphasis added)) fails

to follow SSR 16–3p. That Ruling “eliminat[ed] the use of the term

‘credibility’ from . . . sub-regulatory policy, . . . [and] clarif[ied]

that subjective symptom evaluation is not an examination of [a claimant]’s

character.” SSR 16-3p, 2017 WL 5180304, at *1 (emphasis added). However, any

error by the ALJ in that regard remains harmless under the circumstances of

this case. 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”). Despite the ALJ’s

use of the term “credible” in his finding quoted above (Tr. 18), at the outset

of the RFC analysis, the ALJ stated that he had “considered all symptoms and the

13

The ALJ provided the following analysis to support his part

two finding:

[Plaintiff] essentially argues ongoing disability due to

side effects from his medication – including primarily

fatigue and memory difficulties. He reported that he

requires a three-hour nap daily – about six days out of

seven – despite sleeping almost twelve hours at night.

The record, however, documents medical improvement in

his condition since April 2016. . . . He acknowledged

. . . that he was able to stop several medications

. . . .

After the vagal nerve stimulator was installed, his

medications changed. As the stimulator was adjusted for

optimal therapy, his medications continued to be

reduced. . . .

Given this medication history, the alleged side effects

of drowsiness and difficulty concentration [sic] were

supported in 2012 by the prior ALJ’s finding of 20% off

task as well as medical opinions the ALJ relied upon.

However, since the vagal nerve stimulator and beginning

Aptiom, it is reasonable to expect that the severity of

the side effects has decreased.

It is noteworthy that [Plaintiff] has generally taken

the same dosage of [c]lonazepam and Vimpat since at least

2013. His dosage of Aptiom was reduced in January 2015

and has remained at the same level. . . . [I]t is

notable that from a historical perspective, there is

nothing mentioned in the primary care progress notes of

side effects or drowsiness from these two medications.

extent to which these symptoms can reasonably be accepted as consistent with

the objective medical evidence and other evidence, based on the requirements

of . . . SSR 16-3p” (Tr. 16 (emphasis added)). Moreover, in other material

portions of his subjective symptom analysis, the ALJ adhered to SSR 16-3p’s

requirement that such analysis focus on “the extent to which [a claimant’s]

symptoms can reasonably be accepted as consistent with the objective medical

and other evidence in the [claimant’s] record.” SSR 16-3p, 2017 WL 5180304, at

*2 (emphasis added). For example, in analyzing Plaintiff’s subjective reports

of medication side effects, the ALJ stated that Plaintiff’s “alleged drowsiness

[wa]s not consistent with the treatment note from March 2016.” (Tr. 19

(emphasis added).)

14

Similarly, when Aptiom was added, nothing is noted other

than he was “doing well” or having “no side effects.”

If his side effects were as limiting as claimed, it would

be reasonable to expect that he would have informed his

treating physician who would then note it and make

adjustments to the type or quantity of medication taken.

If side effects were as severe as alleged, it is also

reasonable to expect that his physician would observe

drowsiness during visits. However, there is no

indication in the treatment notes of constant drowsiness

or other apparent side effects. While his treatment

provider noted side effects in Exhibits B10F and B11F,

they are not fully supported by his own progress notes

where side effects are not mentioned. In fact, all the

physical examinations and mental status examinations

show normal language and cognition. It is also

noteworthy that [Plaintiff]’s alleged drowsiness is not

consistent with the treatment note from March 2016 where

there was a single complaint of insomnia.

The only other side effect noted included dizziness. It

was initially noted in December 2016, but by March 2017

[Plaintiff] reported only “one episode of rare

dizziness.” After that, there was no further mention of

it to his primary care provider, which suggests it

resolved. . . .

In sum, the extent of [Plaintiff]’s side effects are not

supported by the treatment notes of record.

(Tr. 18-20 (emphasis added) (internal parenthetical citations

omitted).)4

4 After considering and weighing the opinion evidence of record (see Tr. 20-

23), the ALJ reiterated and summarized his analysis of Plaintiff’s subjective

reports of medication side effects:

[W]hile [Plaintiff] reports ongoing debilitating side effects, the

primary care records do not document reports of limitations to the

extent as alleged. If his side effects were as limiting as claimed,

it would be reasonable to expect that he would have informed his

treating physician who would then note it and make adjustments to

the type or quantity of medication taken. However, as noted above,

15

As the above-quoted and -emphasized discussion makes clear,

in analyzing the extent of Plaintiff’s reported medication side

effects, the ALJ relied on factors other than purely objective

medical evidence. (See Tr. 18-19, 23.) In that regard, the ALJ

properly considered 1) the duration, frequency, and intensity of

Plaintiff’s side effects, 2) the type, dosage, and effectiveness

of medication taken by Plaintiff, expressly observing that the

dosage had remained the same despite Plaintiff’s reports of severe

side effects; and 3) measures other than treatment Plaintiff used

to relieve the side effects, i.e., daily naps. (Id.) The ALJ

also discussed and relied upon the absence of any reports by

Plaintiff to his treating physicians of drowsiness or problems

with his memory (id.), which does not constitute objective

evidence, but rather, subjective evidence of Plaintiff’s

statements (or lack thereof) to his medical providers.

In short, because the ALJ did not solely rely on the lack of

objective evidence to support Plaintiff’s subjective reports of

medication side effects, but properly considered such evidence

along with other permissible factors, Plaintiff’s first assignment

of error fails as a matter of law.

[Plaintiff] has been maintained on generally the same dosage of

medication for some time.

(Tr. 23 (emphasis added).)

16

2. RFC

Next, Plaintiff argues that “[t]he ALJ’s RFC explanation

frustrates meaningful review and is not supported by substantial

evidence.” (Docket Entry 11 at 8 (bold font and single-spacing

omitted).) In particular, Plaintiff challenges the ALJ’s RFC

analysis on four grounds: 1) “[t]he ALJ cherrypicked facts . . .

that support a finding of nondisability while ignoring evidence

that points to a disability finding” (id. at 9 (bold font and

single-spacing omitted)); 2) “[t]he ALJ failed to adhere to the

[SSA]’s ‘treating physician rule’ and failed to adequately explain

how he weighed the opinion evidence” from Plaintiff’s treating

neurologist, Dr. Andrew S. Braunstein (id. at 12 (bold font and

single-spacing omitted)); 3) “[t]he ALJ failed to build an accurate

and logical bridge from the evidence to his conclusion” (id. at 16

(bold font and single-spacing omitted)); and 4) “[t]he ALJ failed

to explain the meaning of ‘production rate pace’ work, which

frustrates meaningful review” (id. at 17 (bold font and single-

spacing omitted)). Those arguments fail to establish an

entitlement to relief.

a. Cherry-Picking Evidence

Plaintiff first faults the ALJ for “cherrypick[ing] facts

. . . that support a finding of nondisability while ignoring

evidence that points to a disability finding.” (Id. at 9 (bold

17

font and single-spacing omitted).) In particular, Plaintiff

claims that the ALJ 1) “ignored evidence provided by [Plaintiff]

and his mother” regarding the impact of his seizures and medication

side effects on his ability to function (id. at 10 (citing Tr. 41-

42, 44-45, 63, 65, 67-68, 282-85, 287)), 2) “ignored evidence from

[Plaintiff’s] primary care provider, Dr. James W. McNabb, [] which

stated [Plaintiff’s] condition was worsened by being in public,

hot weather, extertion [sic], sunlight, and lack of sleep” (id.

(citing Tr. 405)), 3) “failed to consider evidence from [Dr.

Braunstein]” concerning Plaintiff’s functional restrictions (id.

at 10-11 (citing Tr. 379, 388, 477)), and 4) “failed to properly

account for the opinions of the consultative examiners, Dr. Gregory

A. Villarosa[ ] and Dr. Bonny Gregory[ ]” (id. at 11 (citing Tr.

327, 349-50)). Plaintiff’s contentions fall short.

i. Statements from Plaintiff and his Mother

Plaintiff maintains that, in determining the RFC, the ALJ

“ignored” certain statements by Plaintiff at the hearing and by

his mother on a Third Party Function Report. (Id. at 10 (citing

Tr. 41-42, 44-45, 63, 65, 67-68, 282-85, 287).) That argument

glosses over the fact that the ALJ discussed Plaintiff’s statements

on Disability Reports as well as his hearing testimony in detail

(see Tr. 16-17), but discounted those statement as not fully borne

out by the record (see Tr. 18), a finding that, as discussed above,

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the ALJ supported with substantial evidence. Plaintiff’s

contention also overlooks that the ALJ discussed both Plaintiff’s

mother’s testimony at the hearing (see Tr. 17), as well as her

statements on the Third Party Function Report (see Tr. 21), but

assigned those statements “little weight” (id.), a finding

unchallenged by Plaintiff (see Docket Entry 11). Moreover, given

the extensive restrictions in the RFC, including limitations

involving exposure to certain kinds of light, heat and humidity,

heights, and moving machinery, as well as an allowance to wear

sunglasses indoors and limits to simple, routine, and repetitive

tasks (“SRRTs”) and on interaction with others (see Tr. 15-16),

Plaintiff has not shown how a remand for the ALJ to further discuss

the statements in question would result in greater restrictions in

the RFC, let alone to a favorable outcome in his case. See

generally Bishop v. Commissioner of Soc. Sec., 583 F. App’x 65, 67

(4th Cir. 2014) (“[A]ny error is reviewed under the harmless error

doctrine.”); 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”).

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ii. Evidence from Dr. McNabb

Plaintiff next accuses the ALJ of “ignor[ing] evidence” from

Dr. McNabb “which stated [Plaintiff’s] condition was worsened by

being in public, hot weather, extertion [sic], sunlight, and lack

of sleep.” (Docket Entry 11 at 10 (citing Tr. 405).) As a

threshold matter, the evidence at issue from Dr. McNabb, located

in the History of Present Illness (“HPI”) portion of a treatment

note, does not constitute his opinion regarding functional

restrictions arising from Plaintiff’s seizures and/or medication

side effects, but rather reflects Plaintiff’s own statements to

Dr. McNabb regarding aggravating factors for his seizures. (See

Tr. 405.) Furthermore, as the RFC contains an exertional

restriction to medium work, as well as limitations on interaction

with the public and on exposure to hot weather and sunlight (see

Tr. 15-16), Plaintiff has failed to demonstrate how remanding for

the ALJ to discuss this evidence would lead to a more favorable

result in his case. See generally Bishop, 583 F. App’x at 67

(“[A]ny error is reviewed under the harmless error doctrine.”);

Fisher, 869 F.2d at 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”).

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iii. Opinions from Dr. Braunstein

Plaintiff additionally contends that “the ALJ failed to

consider evidence from [Dr. Braunstein] that [Plaintiff’s]

inability to maintain substantial gainful employment was ‘not just

related to seizures’ but also due to ‘side effects from medication

and other,’ [that] ‘he is limited in activity [in] that he cannot

drive, operate heavy machinery, engage in activities which require

heights and other,’ and [that he] ‘has many side effects from his

epilepsy medications.’” (Docket Entry 11 at 10-11 (citing Tr.

379, 388, 477).) Again, Plaintiff fails to acknowledge that the

ALJ expressly considered and assigned “little weight” to Dr.

Braunstein’s opinions that Plaintiff remained “‘incapable of

maintaining gainful employment’” and “‘limited in activity, cannot

drive, operate heavy machinery, or engage in activities that

require heights’” (Tr. 22 (quoting Tr. 388)), as well as to Dr.

Braunstein’s opinion that Plaintiff’s medication side effects left

him “‘disabled’” from any kind of work (id. (quoting Tr. 488)).

As discussed in more detail below, the ALJ did not err in his

evaluation of Dr. Braunstein’s opinions. Moreover, Plaintiff’s

argument ignores the fact that the RFC crafted by the ALJ already

precludes exposure to moving mechanical parts and unprotected

heights (see Tr. 15) and thus Plaintiff has not shown how remand

for additional discussion of Dr. Bronstein’s opinions would change

21

the outcome of his case. See generally Bishop, 583 F. App’x at 67

(“[A]ny error is reviewed under the harmless error doctrine.”);

Fisher, 869 F.2d at 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”).

iv. Opinions from Dr. Villarosa

Plaintiff also challenges the ALJ for “fail[ing] to properly

account for Dr. Villarosa’s opinion” that Plaintiff “‘was quite

slow regarding pace of tasks” and “‘would likely have some

difficulty handling the stress and pressures associated with day-

to-day work activity.’” (Docket Entry 11 at 11 (quoting Tr. 327).)

Plaintiff neglects to recognize that, in rating Plaintiff’s degree

of limitation in concentration, persistence, or pace, the ALJ

explicitly acknowledged that, “[o]n consultative examination,

[Plaintiff] did perform tasks more slowly, but had not [sic]

apparent issues with concentration” and that “treatment notes

d[id] not consistently document any observed deficits in

concentration or maintaining pace.” (Tr. 15.) Plaintiff makes no

attempt to explain why the ALJ’s restrictions to SRRTs “with the

ability to remain on task for two hours at a time before needing

a fifteen minute break throughout a normal work day with a low

level of work pressure defined as work not requiring multitasking,

22

production rate pace, assembly line work, or team work to complete

a task” (Tr. 15-16), as well as to “simple instructions,” “simple

work-related decision[s],” and “simple and routine changes in the

work setting” (Tr. 16) would not sufficiently account for Dr.

Villarosa’s opinions regarding Plaintiff’s abilities to maintain

pace and handle work pressures. That failure precludes relief on

this front. 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.”).

v. Opinions from Dr. Gregory

Lastly (on this front), Plaintiff asserts that “[t]he ALJ []

failed to properly account for Dr. Gregory’s opinion that

[Plaintiff] was moderately limited in his ability to understand

and remember detailed instructions and carry out detailed

instructions; make simple work-related decisions; . . . complete

[a] work-day and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods.”

(Docket Entry 11 at 11 (citing Tr. 349-50).) Plaintiff’s argument

23

brushes aside the fact that, despite finding moderate limitation

in those areas (see Tr. 349-50), Dr. Gregory nevertheless concluded

that Plaintiff remained “capable of [SRRTs] in [a] low stress, low

production setting with limited social interactions” (Tr. 365).

The ALJ accorded “great weight” to Dr. Gregory’s opinions,

expressly noting that, despite finding moderate limitations in

Plaintiff’s abilities to maintain social functioning and

concentration, persistence, or pace, Dr. Gregory opined that

Plaintiff could “perform [SRRTs] in a low stress, low production

setting with limited social interactions.” (Tr. 22 (referencing

Tr. 363, 365).) Significantly, the ALJ included all of those

restrictions in the RFC. (See Tr. 15-16.)

b. Dr. Braunstein’s Opinions

Plaintiff next argues that “the ALJ [] improperly failed to

give the opinion of [Dr. Braunstein] controlling weight as required

by the [SSA]’s regulations and longstanding precedent.” (Docket

Entry 11 at 13 (citing Tr. 22).) The treating source rule

generally requires an ALJ to give controlling weight to the opinion

of a treating source regarding the nature and severity of a

claimant’s impairment. See 20 C.F.R. § 416.927(c) (“[T]reating

sources . . . provide a detailed, longitudinal picture of [a

claimant’s] medical impairment(s) and may bring a unique

perspective to the medical evidence that cannot be obtained from

24

the objective medical findings alone or from reports of individual

examinations, such as consultative examinations or brief

hospitalizations.”). The rule also recognizes, however, that not

all treating sources or treating source opinions merit the same

deference. The nature and extent of each treatment relationship

appreciably tempers the weight an ALJ affords an opinion. See 20

C.F.R. § 416.927(c)(2)(ii). Moreover, as subsections (2) through

(4) of the rule describe in great detail, a treating source’s

opinion, like all medical opinions, deserves deference only if

well-supported by medical signs and laboratory findings and

consistent with the other substantial evidence in the case record.

See 20 C.F.R. § 416.927(c)(2)-(4). “[I]f a physician’s opinion is

not supported by clinical evidence or if it is inconsistent with

other substantial evidence, it should be accorded significantly

less weight.” Craig, 76 F.3d at 590 (emphasis added).

Dr. Braunstein observed, at the end of a treatment note dated

March 16, 2017, that Plaintiff remained “limited in activity” and

could not “drive, operate heavy machinery, engage in activities

which require heights and other,” as well as that Plaintiff could

not “maintain[] gainful employment.” (Tr. 388.) Shortly

thereafter, Dr. Braunstein dated a “To Whom It May Concern” letter

October 17, 2018, in which he opined that Plaintiff “ha[d] many

side effects from his epilepsy medications” and that his

25

“refractory seizures and medication side effects leave him

disabled from any kind of work.” (Tr. 477.) On January 24, 2019,

Dr. Braunstein completed a pre-printed form entitled “Seizures

Medical Source Statement” (“MSS”) (Tr. 478-79) on which he opined

that Plaintiff had convulsive, grand mal seizures on average once

per month and that, following those seizures, Plaintiff

experienced confusion, severe headaches, muscle strain,

exhaustion, and difficulties communicating for approximately six

hours (see Tr. 478). Dr. Braunstein listed Plaintiff’s medication

side effects as dizziness, eye focusing problems, and coordination

disturbance. (See id.) As a result of Plaintiff’s medication

side effects and “unpredictable” seizures, Dr. Braunstein

concluded that Plaintiff could not work. (Tr. 479.)

The ALJ accorded Dr. Braunstein’s opinions “little weight”

based upon the following rationale:

The [ALJ] has [] given little weight to Dr. Braunstein’s

opinion found in Exhibit B9F [(Tr. 388)] - that

[Plaintiff] is “incapable of maintaining gainful

employment” and that he is “limited in activity, cannot

drive, operate heavy machinery, or engage in activities

that require heights.” While Dr. Braunstein is a

treating doctor and a specialist, he did not provide an

opinion as to [Plaintiff]’s function by function

limitations. Additionally, there is no evidence that

the provider has performed functional testing, and it is

unclear if his opinion is based on symptoms reported to

him or clinical examinations. His opinion that

[Plaintiff] is “incapable of maintaining gainful

employment” is conclusory and an opinion on an issue

ultimately reserved for the Commissioner. Further, the

provider does not clarify whether limitations are due to

26

seizures or side effects of medication. It also appears

that the opinion was prompted by [Plaintiff]’s mother

telling the provider that a disability evaluation was

upcoming. . . .

The [ALJ] has also given little weight to Dr.

Braunstein’s opinion found in Exhibit Bl0F [(Tr. 477)].

While it is an opinion from a treating provider and

specialist, Dr. Braunstein does not list or state what

side effects cause [Plaintiff] to be “disabled” or

document whether such side effects were clinically

noted. There is also no evidence this provider performed

any functional testing and the provider did not provide

an assessment of [Plaintiff]’s function by function

limitations. It is also unclear if the opinion is based

on symptoms reported to the provider or a clinical

examination. The opinion that [Plaintiff] is “disabled

from any kind of work” is also an opinion on an issue

reserved for the Commissioner. It is also not consistent

with the medical evidence of record and testimony

showing [Plaintiff]’s seizures have reduced to occurring

only once to twice per year and Dr. Braunstein’s

treatment records that show stable, improved condition,

and no recent mention of adverse side effects.

As for Dr. Braunstein’s opinion found in Exhibit BllF

[(Tr. 478-79)], while this is an opinion from a treating

provider and specialist, he did not identify what

specific side effects would cause limitations. There is

also no evidence of functional testing in this regard

and Dr. Braunstein did not provide a function by function

assessment of [Plaintiff]’s limitations. It is also

unclear if the opinion is based on reported symptoms or

clinical examinations. The opinion that [Plaintiff]

“can’t work” is also an opinion on an issue ultimately

reserved for the Commissioner. Additionally, the

opinion that [Plaintiff] has one seizure per month is

inconsistent with the testimony and other medical

evidence that indicates [Plaintiff] has had more like

one to two seizures per year. Some weight has been

attributed to the opinion in regard to the need for

[Plaintiff] to avoid hazards and heights and the period

of post-seizure recovery of six to seven hours. To

27

account for these limitations, the [ALJ] found

[Plaintiff] would miss work two days per year.

(Tr. 22-23 (internal parenthetical citations omitted).)

Plaintiff first faults the ALJ for discounting Dr.

Braunstein’s opinions that Plaintiff qualified as disabled and/or

could not work as matters reserved to the Commissioner, arguing

that the ALJ must still “consider” such opinions. (Docket Entry

11 at 14 (citing Social Security Ruling 06-03p, Titles II and XVI:

Considering Opinions and Other Evidence from Sources Who Are Not

“Acceptable Medical Sources” in Disability Claims; Considering

Decisions on Disability by Other Governmental and Nongovernmental

Agencies, 2006 WL 2329939, at *6 (Aug. 9, 2006) (“SSR 06-03p”),

for the proposition that the SSA must “‘evaluate all the evidence

in the case record that may have a bearing on [their] determination

or decision of disability . . . by other nongovernmental agencies’”

and that “‘evidence of a disability decision by another

governmental or nongovernmental agency cannot be ignored and must

be considered’” (bold font added by Plaintiff)).)

That argument fails for two reasons. First, Dr. Braunstein

constitutes neither a “governmental” nor a “nongovernmental

agency” and thus the quoted passage from SSR 06-03p lacks

applicability to his opinions. Second, and more significantly,

the ALJ did provide other reasons for discounting Dr. Braunstein’s

opinions that Plaintiff qualified as disabled and/or could not

28

work – the ALJ noted that “[t]he opinion that [Plaintiff] is

‘disabled from any kind of work’ . . . is also not consistent with

the medical evidence of record and testimony showing [Plaintiff]’s

seizures have reduced to occurring only once to twice per year and

Dr. Braunstein’s treatment records that show stable, improved

condition, and no recent mention of adverse side effects.” (Tr.

22 (emphasis added).)

Plaintiff additionally objects that the ALJ discredited Dr.

Braunstein’s opinions because they lacked function by function

limitations, arguing that his “opinion clearly outlines the

following functional limitations: ‘cannot drive, operate heavy

machinery, engage in activities which require heights.’” (Docket

Entry 11 at 14 (quoting Tr. 388).) However, although Dr.

Braunstein’s March 2017 opinion did contain such limitations (two

of which the ALJ incorporated into the RFC (see Tr. 15-16)), Dr.

Braunstein did not provide an opinion regarding the impact of

Plaintiff’s seizures and medication side effects on Plaintiff’s

abilities to engage in exertional activities such as lifting,

carrying, pushing, pulling, sitting, standing, or walking,

postural activities such as balancing, stooping, kneeling,

crouching, or crawling, and manipulative activities such as

handling, fingering, or reaching. (See Tr. 388, 477, 478-79.)

29

Regarding the ALJ’s rationale that Dr. Braunstein’s opinions

lacked clarity as to whether “the opinion [wa]s based on reported

symptoms or clinical examinations” (Tr. 23), Plaintiff observes

that “there is no requirement that an opinion specifically state

which aspects are based on subjective complaints, clinical

examination or both” (Docket Entry 11 at 14). Although the

regulations do not require medical providers to explicitly

categorize their opinions as reflecting clinical findings versus

a patient’s subjective reports, controlling precedent and the

regulations make abundantly clear that, “if a physician’s opinion

is not supported by clinical evidence[,] . . . it should be

accorded significantly less weight.” Craig, 76 F.3d at 590; see

also 20 C.F.R. § 416.927(c)(2)-(4). Thus, to the extent Dr.

Braunstein did not clarify whether he based his opinions on

Plaintiff’s subjective symptom reports, the ALJ did not err in

citing such lack of clarity as one factor among many in his

decision to discount Dr. Braunstein’s opinions. See Bishop, 583

F. App’x at 67 (affirming ALJ’s rejection of medical opinion

because that opinion “appeared to mirror [the claimant]’s

subjective statements” and conflicted “with the mild to moderate

diagnostic findings, the conservative nature of [the claimant]’s

treatment, and the generally normal findings during physical

examinations”).

30

Plaintiff further takes issue with “the ALJ’s suggestion that

Dr. Braunstein only stated [his March 2017] opinion because

[Plaintiff’s] mother suggested [Dr. Braunstein] do so,” deeming

such a rationale “without merit, conjecture, and frustrat[ing to]

meaningful review.” (Docket Entry 11 at 14 (emphasis added)

(citing Tr. 22, 388).) The ALJ, in fact, did not find that Dr.

Braunstein “only” offered his March 2017 opinion because

Plaintiff’s mother requested he do so. Rather, the ALJ merely

noted, as one consideration among many others, that the report of

Plaintiff’s mother to Dr. Braunstein on March 16, 2017, that

Plaintiff’s “disability evaluation [wa]s coming up for review”

(Tr. 388) appeared to prompt Dr. Braunstein’s disability opinion

at the conclusion of that treatment note. (Tr. 22.) An ALJ may

permissibly consider whether a claimant solicited a disability

opinion in support of his or her benefits claim as one factor among

others in weighing the opinion. See Hinton v. Massanari, 13 F.

App’x 819, 824 (10th Cir. 2001) (holding that ALJ may “question a

doctor’s credibility” when the claimant’s counsel solicited

the opinion, but “may not automatically reject the opinion for

that reason alone”); Berry-Hobbs v. Colvin, No. 1:15CV01103, 2016

WL 4621080, at *9 (M.D.N.C. Sept. 6, 2016) (unpublished) (“So long

as the ALJ relies on other factors in addition to the source of

the examination to support his or her decision to discount the

31

opinion in question, the ALJ does not commit

error.”), recommendation adopted, 2016 WL 5922312 (M.D.N.C. Oct.

11, 2016) (unpublished) (Schroeder, J.); McCummings v. Colvin, No.

CIV.A. 5:12-3315, 2014 WL 108356, at *13 (D.S.C. Jan. 10, 2014)

(unpublished) (finding no error where ALJ stated that “combination

of [] factors” caused him to discount physician’s opinion, and ALJ

did not discount the opinion merely because counsel solicited it),

aff’d sub nom., McCummings v. Commissioner of Soc. Sec. Admin.,

585 F. App’x 28 (4th Cir. 2014).

c. Accurate and Logical Bridge

Plaintiff also attacks the ALJ’s RFC analysis by asserting

that, “similar to Monroe[ v. Colvin, 826 F.3d 176, 189-90 (4th

Cir. 2017)], the ALJ [] failed to build an accurate and logical

bridge from the evidence to his conclusion that [Plaintiff’s]

medication side effects are not as severe as alleged.” (Docket

Entry 11 at 16.) In particular, Plaintiff faults the ALJ for 1)

“assert[ing] that [Plaintiff’s] medication side effects [we]re not

documented” in the record “because . . . Dr. Braunstein[] did note

his medication side effects on several occasions” (id. at 17

(citing Tr. 379, 388, 390, 477, 479)), and 2) “inserti[ng the

ALJ’s] own opinion as to what action by [Plaintiff’s] physician

would have been ‘reasonable’ regarding the medications” as

32

“[im]proper and frustrat[ing to] meaningful review” (id. (citing

Tr. 23)). Neither of those assertions carries the day.

Plaintiff’s contention that “Dr. Braunstein[] did note his

medication side effects on several occasions” (id. at 17 (citing

Tr. 379, 388, 390, 477, 479)) falls short. The ALJ explained that

Plaintiff “essentially argue[d] ongoing disability due to side

effects from his medication – including primarily fatigue and

memory difficulties” (Tr. 18 (emphasis added)), but found that,

“[i]f side effects were as severe as alleged, it [wa]s []

reasonable to expect his physician would observe drowsiness during

visits,” but that “there [wa]s no indication in the treatment notes

of constant drowsiness,” and that “all the physical examinations

and mental status examinations show[ed] normal language and

cognition” (Tr. 19). Consistent with that analysis, the transcript

pages upon which Plaintiff relies do not document drowsiness or

fatigue as a medication side effect but rather contain only generic

mentions of “side effects from medication” (Tr. 379; see also Tr.

477 (asserting Plaintiff “has many side effects from his epilepsy

medications”), 479 (listing “[side effects] from meds” as among

“limitation that would affect [Plaintiff]’s ability to work at a

regular job on a sustained basis”)), or list the side effects as

“dizziness and other” (Tr. 388 (emphasis added)) or “several bouts

of dizziness of unclear etiology” (Tr. 390 (emphasis added)).

33

Indeed, Dr. Braunstein noted on his MSS that Plaintiff’s medication

side effects included “[d]izziness,” “[e]ye focusing problems,”

and “[c]oorindation disturbance,” and did not check the boxes for

“[l]ethargy” and “[l]ack of alertness.” (Tr. 478.) Under such

circumstances, Plaintiff has not shown that the ALJ erred by

finding that the record failed to support Plaintiff’s claim of

disabling drowsiness and memory problems from his medications.

Plaintiff’s argument that the ALJ erred by “inserti[ng ] his

own opinion as to what action by [Plaintiff’s] physician would

have been ‘reasonable’ regarding the medications” (Docket Entry 11

at 17 (citing Tr. 23)) fares no better. Given that the pre-printed

MSS form expressly asked Dr. Braunstein to indicate which side

effects Plaintiff experienced from his epilepsy medications, and

pre-printed boxes existed for “[l]ethargy,” “[l]ack of alertness,”

and “[o]ther” (with a space to write-in a side effect not otherwise

listed) which Dr. Braunstein did not check (Tr. 478), the ALJ did

not err by observing that, “[i]f side effects were as severe as

alleged, it [wa]s [] reasonable to expect his physician would

observe drowsiness during visits,” but that “there [wa]s no

indication in the treatment notes of constant drowsiness” (Tr.

19).

34

d. Production Rate Pace

Plaintiff next maintains that the ALJ erred by using the term

‘production rate pace’ in [Plaintiff’s] RFC evaluation, but

fail[ing] to explain what the term means.” (Docket Entry 11 at 18

(citing Thomas v. Berryhill, 916 F.3d 307, 312 (4th Cir. 2019)

(holding that phrase “production rate or demand pace” did not

qualify as “especially common – certainly not common enough for

[the court] to know what mean without elaboration”)).) However,

a review of recent decisions from the United States Court of

Appeals for the Fourth Circuit addressing non-production

restrictions bolsters the conclusion that the ALJ sufficiently

explained the meaning of the phrase “production rate pace” to

permit meaningful judicial review.

As another judge of this Court recently reasoned:

In [Perry v. Berryhill, 765 F. App’x 869 (4th Cir.

2019)], the Fourth Circuit found fault with “the ALJ’s

reference to a ‘non-production oriented work setting,’”

as the Fourth Circuit “d[id] not know what the ALJ

intended when she used that phrase,” making it

“difficult, if not impossible, to evaluate whether

restricting [the plaintiff] to a ‘non-production

oriented work setting’ properly accounted for [his]

well-documented limitations in concentration,

persistence, or pace.” Perry, 765 F. App’x at 872. In

so doing, the Fourth Circuit specifically distinguished

its decision in Sizemore v. Berryhill, 878 F.2d 72 (4th

Cir. 2017), where it “found that an ALJ had adequately

explained a[n RFC] assessment that restricted the

claimant, in part, to ‘non-production jobs,’” as “the

ALJ in Sizemore provided additional context, explaining

that the claimant could perform work only in a ‘low

stress’ setting, without any ‘fast-paced work’ or

35

‘public contact,’ to account for moderate limitations in

concentration, persistence, or pace,” which “descriptors

helped to explain the restriction intended by the ALJ,

and allowed [the Fourth Circuit] to evaluate whether

that restriction adequately accounted for the claimant’s

limitations.” Perry, 765 F. App’x at 872 n.1.

Ross v. Berryhill, No. 1:17CV1145, 2019 WL 1430129, at *1 (M.D.N.C.

Mar. 29, 2019) (unpublished) (Schroeder, C.J.) (emphasis added);

see also Thomas, 916 F.3d at 312 (finding that ALJ’s preclusion of

“work ‘requiring a production rate or demand pace’” and “‘crisis

situations, complex decision making, or constant changes in a

routine setting’” did not suffice under facts of that case). As

in Ross (and consistent with Sizemore, as construed in Perry), the

ALJ here defined “a low level of work pressure” to mean work

requiring no “multitasking, production rate pace, assembly line

work, or team work to complete a task,” and provided the further

descriptors of “simple instructions,” “simple work-related

decisions,” “simple and routine changes in the work setting,” as

well as “frequent interaction with coworkers and supervisors” and

“no more than occasional interaction with the public” (Tr. 15-16).

Those descriptors “help[] to explain the restriction intended by

the ALJ, and allow[ the Court] to evaluate whether that restriction

adequately accounted for [Plaintiff’s] limitations,” Perry, 765 F.

App’x at 872 n.1.

In sum, Plaintiff’s second issue on review fails as a matter

of law.

36

3. Conflicts Between VE and DOT

In his third and final assignment of error, Plaintiff contends

that “[t]he Commissioner failed to his [sic] burden at step five

of the [SEP] because he failed to identify and resolve all apparent

conflicts of the VE’s testimony with the [DOT].” (Docket Entry 11

at 18 (bold font and single-spacing omitted).) In that regard,

Plaintiff asserts that “the VE note[d] several conflicts[] which

the ALJ failed to properly resolve” (id. (citing Tr. 80-81)), as

well as that “the jobs [cited by the VE and adopted by the ALJ at

step five] require the use of machinery and equipment or working

around machinery and equipment” (id. (citing Dictionary of

Occupational Titles (“DOT”), No. 311.677-018 (“Dining Room

Attendant”), 1991 WL 672696 (G.P.O 4th ed. rev. 1991), DOT, No.

761.684-026 (“Polisher”), 1991 WL 680432, DOT, No. 389.683-010

(“Sweeper-Cleaner, Industrial”), 1991 WL 673279)) in contravention

of the RFC’s preclusion of “exposure to moving mechanical parts”

(Tr. 15). According to Plaintiff, “the ALJ failed to ask the VE

any follow up questions as to how these conflicts m[ight] impact

the numbers of these jobs that would be available for a claimant

like [Plaintiff].” (Docket Entry 11 at 18 (citing Tr. 79-81).)

Those contentions fail on both fronts.

Social Security Ruling 00-4p, Policy Interpretation Ruling:

Titles II and XVI: Use of Vocational Expert and Vocational

37

Specialist Evidence, and Other Reliable Occupational Information

in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000) (“SSR 00-

4p”), places an affirmative duty on an ALJ to elicit an explanation

from the VE as to any “apparent unresolved conflict” between the

VE’s testimony and the DOT:

Occupational evidence provided by a VE . . . generally

should be consistent with the occupational information

supplied by the [DOT]. When there is an apparent

unresolved conflict between VE . . . evidence and the

[DOT], the [ALJ] must elicit a reasonable explanation

for the conflict before relying on the VE . . . evidence

to support a determination or decision about whether the

claimant is disabled. At the hearings level, as part of

the [ALJ’s] duty to fully develop the record, the [ALJ]

will inquire, on the record, as to whether or not there

is such consistency.

SSR 00-4p, 2000 WL 1898704, at *2 (emphasis added). “[A]n ALJ has

not fulfilled his affirmative duty merely because the [VE] responds

‘yes’ when asked if her testimony is consistent with the [DOT],”

Pearson v. Colvin, 810 F.3d 204, 208 (4th Cir. 2015) (internal

quotation marks omitted); thus, “[t]he ALJ independently must

identify . . . where the [VE’s] testimony seems to, but does not

necessarily, conflict with the [DOT],” id. at 209 (emphasis added);

see also id. (rejecting the Commissioner’s argument that

“apparent” conflict meant only “obvious” one).

Here, the ALJ asked the VE whether her opinion remained

“consistent with the [DOT] and its companion publication, the

[Selected Characteristics of Occupations Defined in the Revised

38

Dictionary of Occupational Titles (‘SCO’)],” to which the VE

responded as follows:

Yes, sir, your honor. With the exception of such

characteristics as an individual being off task,

interacting with coworkers and supervisors, unscheduled

absences, and individual multitasking, production rate

pace, an individual remaining on task, breaks,

accommodations with sunglasses, as well as the

references to exposure to light, outdoor sunlight,

fluorescent light, flashing lights. Those

characteristics are not mentioned or cited in the [DOT]

or supplement publications, but the information that I

provided in regards to those characteristics is based on

a reasonable degree of vocational certainty that is a

result of my education and training, and also experience

with employers, job search, and placement.

(Tr. 80-81.)

As the above-quoted testimony makes clear, the VE did not

testify that conflicts existed between her testimony and the DOT

(or SCO) with respect to subject areas at issue, but rather that

the DOT (and SCO) did not address such subjects, such that the VE

based her testimony that the jobs she cited could accommodate

restrictions in those areas on her “education and training, and

also experience with employers, job search, and placement.” (Tr.

81.) Thus, the ALJ did not fail to identify and resolve any

apparent conflicts in those areas. See Burns v. Barnhart, 312

F.3d 113, 128 (3d Cir. 2002) (noting that, because DOT does not

address aptitude levels, DOT and VE testimony “w[ere] not

necessarily inconsistent in this regard, so the duty on the part

of the ALJ to inquire into conflicts did not arise”); Finnegan v.

39

Berryhill, No. 1:16CV1012, 2017 WL 2224332, at *6 (M.D.N.C. May

19, 2017) (unpublished) (“[T]he mere silence of the DOT on a matter

does not create, per se, an apparent conflict between the VE’s

testimony and the DOT.”), recommendation adopted, slip op.

(M.D.N.C. June 16, 2017) (Schroeder, J.); Manley v. Colvin, No. ED

CV 16–1179–E, 2016 WL 7191541, at *4 (C.D. Cal. Dec. 12, 2016)

(unpublished) (“There is no obvious or apparent conflict between

the [DOT] and a [VE’s] testimony that a particular job can

accommodate a sit/stand option. To hold otherwise would mean that

[VEs] always create conflicts with the [DOT] whenever they mention

any of the multitude of things about a job not expressly addressed

in the [DOT].” (internal citation, quotation marks, and brackets

omitted)). Moreover, the DOT flatly contradicts Plaintiff’s

unsupported argument that the jobs cited by the VE and adopted by

the ALJ at step five “require the use of moving machinery or

equipment” (Docket Entry 11 at 18) – each job listing in the DOT

reflects the following entry: “Moving Mech. Parts: Not Present -

Activity or condition does not exist.” DOT, No. 311.677-018

(“Dining Room Attendant”), 1991 WL 672696; DOT, No. 761.684-026

(“Polisher”), 1991 WL 680432; DOT, No. 389.683-010 (“Sweeper-

Cleaner, Industrial”), 1991 WL 673279 (emphasis added).

Put simply, Plaintiff has not shown entitlement to relief

with regards to this assignment of error.

40

III. CONCLUSION

Plaintiff has not established any errors warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Summary Judgment (Docket Entry 10) be denied, that Defendant’s

Motion for Judgment on the Pleadings (Docket Entry 14) be granted,

and that this action be dismissed with prejudice.

/s/ L. Patrick Auld_______

L. Patrick Auld

United States Magistrate Judge

May 28, 2021

41