# GRYDER

> District Court, M.D. North Carolina · April 2, 2026

URL: https://www.frixlaw.com/law-library/cases/11299619

## Case

- **Full name:** Michelle G. v. Frank J. Bisignano, Commissioner of Social Security
- **Court:** District Court, M.D. North Carolina
- **Decided:** April 2, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHELLE G., )
)
Plaintiff, )
)
v. ) 1:25CV142
)
FRANK J. BISIGNANO, )
Commissioner of Social Security, )
)
Defendant.1 )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michelle G., 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
(the “Commissioner”), denying Plaintiff’s claim for Supplemental
Security Income (“SSI”). (Docket Entry 1.) The Commissioner has
filed the certified administrative record (Docket Entry 5 (cited
herein as “Tr. __”)), and both parties have submitted dispositive
briefs in accordance with Rule 5 of the Supplemental Rules for
Social Security Actions under 42 U.S.C. § 405(g) (Docket Entry 9
(Plaintiff’s Brief); Docket Entry 12 (Commissioner’s Brief); see
1 The United States Senate confirmed Frank J. Bisignano as the Commissioner
of the Social Security Administration on May 6, 2025, and he took the oath of
office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Frank J. Bisignano should substitute as Defendant in this suit.
Neither the Court nor the parties need take 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).
also Docket Entry 13 (Plaintiff’s Reply)). For the reasons that
follow, the Court will enter judgment for the Commissioner.2
I. PROCEDURAL HISTORY
Plaintiff applied for SSI on March 19, 2021 (Tr. 215-24),
alleging a disability onset date of January 1, 2019 (see Tr. 215).3
Upon denial of that application initially (Tr. 85-94, 106-10) and
on reconsideration (Tr. 95-105, 112-14), Plaintiff requested a
hearing de novo before an Administrative Law Judge (“ALJ”)
(Tr. 117). Plaintiff (represented by counsel), Plaintiff’s mother,
and a vocational expert (“VE”) testified at the hearing. (Tr. 45-
84.) The ALJ subsequently ruled that Plaintiff did not qualify as
disabled under the Act. (Tr. 24-44.) The Appeals Council
thereafter denied Plaintiff’s request for review (Tr. 11-16, 212-
14), 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 March 19, 2021, the application date.
2 On consent of the parties, “this case [wa]s referred to the
[undersigned] United States Magistrate Judge . . . to conduct all
proceedings . . ., to order the entry of judgment, and to conduct all post-
judgment proceedings []herein.” (Docket Entry 8 at 1.)
3 Notwithstanding Plaintiff’s alleged onset date of January 1, 2019, she
lacked eligibility for SSI benefits until her application date of March 19, 2021
(see Tr. 215). See 20 C.F.R. § 416.202 (explaining that a claimant remains
ineligible for SSI benefits until date he or she files SSI application); 20
C.F.R. § 416.501 (stating that a claimant may not receive SSI benefits for any
period that predates first month he or she satisfies eligibility requirements,
which cannot precede application date).
2
. . .
2. [Plaintiff] has the following severe impairments:
[g]eneralized anxiety disorder; lumbar degenerative disc
disease; bilateral knee degenerative arthritis; right-
handed carpal tunnel syndrome; chronic right foot
fractures; asthma[;] obesity[;] and depression.
. . .
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 light work . . . except [l]ift and/or
carry 20lbs occasionally and 10lbs frequently; sit for
6hrs, stand and/or walk for 6hrs; operate foot controls
with the right foot occasionally; frequently handle,
finger, and feel with right upper extremity. [Plaintiff]
can climb ramps and stairs occasionally, never climb
ladders, ropes, or scaffolds, balance never, stoop
occasionally, kneel occasionally, crouch occasionally,
crawl occasionally. [Plaintiff] can never work at
unprotected heights, occasionally work near moving
mechanical parts, in humidity and wetness, dust, odors,
fumes, and pulmonary irritants, in extreme cold and in
extreme heat; frequent work in vibration. [Plaintiff]
can perform simple, routine tasks, and make simple work-
related decisions; is able to interact with supervisors,
colleagues, and the public frequently; can maintain
concentration, persistence, and pace two hours at a time,
but would be off-task 3 percent of time in an 8-hour
workday in addition to regularly afforded breaks.
. . .
5. [Plaintiff] is capable of performing past relevant
work as a mail clerk. This work does not require the
performance of work-related activities precluded by
[Plaintiff]’s residual functional capacity.
. . .
3
6. [Plaintiff] has not been under a disability, as
defined in the [] Act, since March 19, 2021, the date the
application was filed.
(Tr. 29-39 (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
4
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted). “If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
is substantial evidence.” Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
“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
5
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting 42 U.S.C. § 423(d)(1)(A)).4 “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
[(‘RFC’)] 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).5 A finding adverse to the
4 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).
5 “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
(continued...)
6
claimant at any of several points in the SEP forecloses an award
and ends the inquiry. For example, “[t]he first step determines
whether the claimant is engaged in ‘substantial gainful activity.’
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 [RFC].” Id. at 179.6 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

5 (...continued)
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6 “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
analysis proceeds to the fifth step, whereupon the ALJ must decide
“whether the claimant is able to perform other work considering
both [the claimant’s RFC] and [the claimant’s] vocational
capabilities (age, education, and past work experience) to adjust
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
567.7
B. Assignment of Error
In Plaintiff’s first and only issue on review, she asserts
that “[t]he [ALJ] erred as a matter of law as there is no logical
bridge between the evidence and the RFC’s arbitrary and conclusory
limitation of 3% off task time.” (Docket Entry 9 at 8 (all-caps
font and block formatting omitted); see also Docket Entry 13 at 1-
9.) In that regard, Plaintiff maintains that “[c]ourts within the
Fourth Circuit have stated that, where an ALJ includes a percentage

for time off task in the RFC, an explanation of the precise amount
of time off task is critical” (Docket Entry 9 at 9), and that “the
‘ALJ must explain and support that conclusion with substantial
7 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
evidence’” (id. (quoting Berry v. Commissioner of Soc. Sec., No.
3:21CV240, 2022 WL 3354778, at *2 (W.D.N.C. Aug. 12, 2011)
(unpublished))). Thus, Plaintiff argues, “[w]hile ‘an ALJ is not
required to determine a percentage of time off-
task[,] . . . . where, as here, the evidence substantiates
difficulty with sustained concentration and the ALJ renders a
conclusion regarding a precise percentage [of off-task time], the
ALJ must explain and support that conclusion with substantial
evidence’” (id. at 10 (quoting Kane v. Commissioner, Soc. Sec.
Admin., No. 17CV1252, 2018 WL 2739961, at *2 (D. Md. May 14, 2018)
(unpublished))), “with reference to the record” (id. (citing Abdul
K. v. Kijakazi, No. 21CV2434, 2022 WL 2789363, at *2-3 (D. Md. July
15, 2022) (unpublished))). In Plaintiff’s view, “*[i]n the absence
of explanation, the Court is left to pontificate on where the ALJ
came up with the [three]-percent figure and why this limitation
adequately accounts for Plaintiff’s limitations[,]’” which
“guesswork [] Mascio and its progeny prohibit this Court from
doing.’” (Id. (quoting Kennedy v. Berryhill, No. 3:18CV405, 2019 WL
3664936, at *4 (W.D.N.C. Aug. 6, 2019) (unpublished) □□□□

® Plaintiff cites additional cases in the Fourth Circuit she contends
remanded for inadequate explanations by the ALJs of time off-task percentages in
the RFCs. (See Docket Entry 9 at 10-13 (citing Michelle A. v. Dudek, No. 24CV8,
2025 WL 948446, at *4 (D. Md. Mar. 28, 2025) (unpublished) (five percent),
Armstrong v. Commissioner of Soc. Sec. Admin., No. 3:23CV124, 2024 WL 463311, at
*2 (W.D.N.C. Jan. 4, 2024) (unpublished) (10 percent), recommendation adopted,
2024 WL 460262 (W.D.N.C. Feb. 5, 2024) (unpublished), Cross _v. Kijakazi, No.
4:22CV4333, 2023 WL 10947229, at *4-6 (D.S.C. Sept. 20, 2023) (unpublished) (no
more than five percent), recommendation adopted, 2024 WL 1349042 (D.S.C. Mar. 28,
2024) (unpublished), Beth Ann 0. v. Kijakazi, No. 21CV1877, 2022 WL 3360277, at
(continued...)

According to Plaintiff, the ALJ’s above-described error does
not qualify as harmless, because “[t]he evidence in the record
shows it is possible Plaintiff could be off task more than 10% of
the workday, which would be work preclusive.” (Id. at 14 (block
formatting omitted); see also id. at 17 (noting VE’s testimony
that, “if the individual were off task more than 10%, there would
be no work available” (citing Tr. 81)).) In support of that
assertion, Plaintiff contends that she might experience off-task
time (A) “to recuperate after walking, standing, using stairs, or
doing light lifting” due to shortness of breath, back pain, and leg
pain (id. at 15 (bold font omitted)), (B) “due to panic attacks”
which require her to “lay [sic] down for 15 minutes or longer” (id.
(bold font omitted)), and (C) caused by “intermittent explosive
disorder, hear[ing] voices, [] mood swings, . . . get[ting] into
arguments[,]” and “depression [that] affects [her] energy level and
motivation to complete tasks” (id. (internal quotation marks
omitted)). For the following reasons, Plaintiff’s arguments fall
short.

8 (...continued)
*3 (D. Md. Aug. 15, 2022) (unpublished) (eight percent), Keith L. v. Saul, No.
20CV930, 2021 WL 1723084, at *2 (D. Md. Apr. 30, 2021) (unpublished) (five
percent), Bibey v. Saul, No. 1:19CV2690, 2020 WL 7694552, at *4 (D. Md. Dec. 28,
2020) (unpublished) (five percent), Cannon v. Berryhill, No. 1:18CV285, 2019 WL
7875158, at *5-6 (W.D.N.C. Dec. 23, 2019) (unpublished) (nine percent),
recommendation adopted, 2020 WL 596944 (W.D.N.C. Feb. 6, 2020) (unpublished),
Patricia W. v. Berryhill, No. 1:19CV9, 2019 WL 6790512, at *3 (D. Md. Dec. 12,
2019) (unpublished) (10 percent), Kilgo v. Saul, No. 3:18CV312, 2019 WL 3719609,
at *4 (W.D.N.C. Aug. 7, 2019) (unpublished) (nine percent), Conary v. Berryhill,
No. 2:18CV1228, 2019 WL 3216041, at *9 (S.D.W. Va. June 25, 2019) (unpublished)
(no more than five percent), recommendation adopted, 2019 WL 3211268 (S.D.W. Va.
July 16, 2019) (unpublished).
10

RFC measures “the most a claimant can do despite” any physical
and mental limitations, Hines, 453 F.3d at 562; 20 C.F.R.
§ 416.945(a), and represents a claimant’s “‘ability to do sustained
work-related physical and mental activities in a work setting ona
regular and continuing basis,’” i.e., “*8 hours a day, for 5 days
a week, or an equivalent work schedule,’” Hines, 453 F.3d at 562
(emphasis omitted) (quoting Social Security Ruling 96-8p, Policy
Interpretation Ruling Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *1 (July
2, 1996) (“SSR 98-6p”)). An ALJ must determine a claimant’s
exertional and non-exertional capacity only after considering all
of a claimant’s impairments, as well as any related symptoms,
including pain. See id. at 562-63; 20 C.F.R. § 416.945(b). The
ALJ then must match the claimant’s exertional abilities to an
appropriate level of work (i.e., sedentary, light, medium, heavy,
or very heavy), see 20 C.F.R. § 416.967, and any non-exertional
limitations may further restrict the claimant’s ability to perform
jobs within an exertional level, see 20 C.F.R. § 416.969a(c).
An ALJ need not discuss every piece of evidence in making an
RFC determination, see Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014); however, “the ALJ must both identify
evidence that supports his conclusion and build an accurate and
logical bridge from that evidence to his conclusion,” Woods v.
Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (internal emphasis,

11

quotation marks, and brackets omitted). Here, despite the absence
of an express discussion by the ALJ of the basis for the three
percent off-task time limitation, no basis for remand exists,
because the ALJ’s decision nevertheless supplies the necessary
“accurate and logical bridge,” Woods, 888 F.3d at 694 (internal
quotation marks omitted), between the evidence and his findings
that Plaintiff’s impairments (A) qualified as “severe” at step two
of the SEP (Tr. 29), and (B) resulted in “moderate” limitation in
her ability to concentrate, persist, and maintain pace (“CPP”) (Tr.
31-32), but (C) did not cause her to incur time off-task greater
than three percent of an eight-hour workday in addition to standard
breaks (see Tr. 32).
The United States Court of Appeals for the Fourth Circuit
recently affirmed (in an unpublished opinion) an ALJ’s assignment
of a specific percentage of off-task time in the RFC. See Rebecca
J. v. Kijakazi, No. 22-1531, 2023 WL 3970022, at *3 (4th Cir. June
13, 2023) (unpublished). In Rebecca J., the ALJ determined that
the plaintiff “‘would be off task seven percent of the workday,’”
Rebecca J., 2023 WL 3970022, at *2, due to her need to irrigate and

steam her nose to alleviate symptoms from a perforated septum, see
id. at *3. The plaintiff “alleged that the
ALJ . . . insufficiently accounted for the requisite frequency and
duration of the nasal irrigation and steaming[,] . . . that her
treatments would result in a loss of more than 15% productivity in
12
any given day[,]” and “that the ALJ failed to build a logical
bridge from the objective evidence to his finding that [the]
plaintiff d[id] not need to undertake treatments as frequently or
for the duration that she claim[ed].” Id.
The Fourth Circuit rejected that argument, and provided the
following rationale:
As the district court correctly observed, the record in
this case is devoid of sufficient evidence, including
opinions and treatment notes, demonstrating that
Plaintiff would be off task more than seven percent of
the day to account for her nasal treatment. No physician
has prescribed this particular form of treatment, much
less made any recommendation as to frequency or duration.
And [the] plaintiff has produced no expert opinion
suggesting that she has limitations greater than those
accounted for in the RFC found by the ALJ. The ALJ
exhaustively considered the objective medical evidence
and [the] plaintiff’s subjective description of her
symptoms and found that [the] plaintiff’s statements
concerning the intensity, persistence and limiting
effects of these symptoms were not entirely consistent
with the medical evidence and other evidence in the
record. Specifically, the ALJ considered and explained
that the objective evidence did not support [the]
plaintiff’s claim that her impairments prevent her from
working because she has fatigue and needs to frequently
steam her throat due to excess mucous, or her claim that
she struggles to complete even routine daily tasks.
Id. (emphasis added) (internal quotation marks, citations, and
brackets omitted). Significantly, as the language emphasized above
makes clear, the Fourth Circuit both (A) found the ALJ’s discussion
of the evidence sufficient to support the seven percent off-task
finding, and (B) determined that the plaintiff had not proffered
evidence supporting a greater amount of off-task time. Id.

13

Very recently, another judge of this Court considered a
plaintiff’s challenge to an RFC finding that the plaintiff “could
understand, remember, and carry out instructions for 95 to 100% of
the time.” Bradley N.A. v. Bisignano, No. 1:25CV21, 2026 WL
539874, at *4 (M.D.N.C. Feb. 26, 2026) (unpublished) (McFadden,
M.J.). Notably, “[a]lthough the ALJ did not explain or set forth
a_formula_as _ to why she chose a five percent off task finding
instead of two percent or six percent,” the Court found that such
“lack of precision [wa]ls not a reason to reverse the decisionl[,
blecause[] the ALJ did not find evidence showing that [the
plaintiff]’s ability to understand, remember, and carry out
instructions was so compromised that he could not work[,]” i.e.,
“the ALJ found that [the plaintiff’s] symptoms caused some time off
task, but not a disabling amount of it.” Id. (emphasis added)
(citing Shaw v. Kijakazi, No. 1:20CV581, 2021 WL 3079905, at *9
(M.D.N.C. July 21, 2021) (unpublished), recommendation adopted,
2021 WL 6202788 (M.D.N.C. Aug. 23, 2021) (unpublished) (Osteen,
J.)). The Court additionally found that “the ALJ .. . adequately
supported her up to 5% off task finding by pointing to multiple
lines of evidence including objective medical evidence, treatment
history, [] daily activities, . . . [and] medical opinions,” and
that the plaintiff “failed to point to evidence that would compel
a_ different outcome.” Id. at 8 (emphasis added).

14

Similarly, here, although the ALJ did not expressly explain
the reasoning behind his three percent off-task finding (see Tr.
32-38), the Court can nevertheless trace the path of the ALJ’s
reasoning in finding that Plaintiff’s impairments caused her to
experience off-task time for three percent of an eight-hour
workday, i.e., that she experienced some limitation in her ability
to remain on-task, but not disabling limitations, see Shaw, 2021 WL
3079905, at *9. The ALJ acknowledged Plaintiff’s subjective
reports of “low back pain that radiated at times into the right
lower extremity,” “shortness of breath with activity,” “poor
quality mood, low motivation, loss of pleasure in activities, and
feelings of worthlessness,” “anxious feelings and panic attacks,”
“mood swings, irritability, and [] b[eing] argumentative,” as well
as “limitations in . . . completing tasks” and “needing breaks to
perform household chores.” (Tr. 33.) The ALJ, however, also
observed that Plaintiff could engage in the following daily
activities:
As for activities of daily living, [Plaintiff] testified
and reported that she could perform personal hygiene,
dress herself, and feed herself without difficulty. She
stated that she could prepare small meals, perform
household chores, shop in stores and online, and manage
finances. She managed her medical care
independently. [Plaintiff] reported that she was able to
provide care for a minor child. She reported travelling
[sic] out of state and had the ability to travel for
vacation. She reported that she drove wherever she
needed to go. She reported no difficulty with
understanding or following verbal or written
instructions. She reported spending time watching
15
television, playing games on the computer, and surfing
the internet.
(Id. (internal parenthetical citation omitted).) Plaintiff’s wide
range of daily activities provides support for the ALJ’s finding
that Plaintiff’s impairments resulted in off-task time for three
percent of a workday. See Bradley N.A., 2026 WL 539874, at *5
(noting that ALJ’s reliance on the plaintiff’s daily activities
supported his off-task time limitation, because “the performance of
th[o]se activities requires . . . remaining on task” (citing Medina
v. Commissioner of Soc. Sec., 831 F. App’x 335, 36 (2d Cir.
2020))). Ultimately, the ALJ found Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [her]
symptoms [] not entirely consistent with the medical evidence and
other evidence in the record” (Tr. 34), and Plaintiff did not
challenge that finding by the ALJ (see Docket Entries 9, 13).
Accordingly, the ALJ’s analysis of Plaintiff’s subjective symptom
reports supports the ALJ’s off-task time limitation. See Rebecca
J., 2023 WL 3970022, at *3 (rejecting the plaintiff’s challenge to
seven percent off-task finding in RFC, because “[t]he ALJ properly
considered [the] plaintiff’s ability to care for her personal needs
and perform activities of daily living in evaluating the
credibility of her subjective symptoms, . . . . and built an
accurate and logical bridge from the evidence he recounted to his
conclusion” (internal quotation marks omitted)).

16
The ALJ’s discussion of the objective medical evidence further
supports his off-task time limitation. Regarding Plaintiff’s back
and leg pain, the ALJ noted that “physical therapy
records . . . revealed no loss of range of motion with extension,
minimal loss of range of motion with side glide to the right and
left and moderate range of motion with forward flexion,” as well as
“negative bilateral straight leg raise test [and] negative slump
and clonus tests.” (Tr. 34 (internal parenthetical citation
omitted).) The ALJ further observed that “[p]hysical exams did not
reveal sensory deficits in any extremity and [Plaintiff] retained
normal strength in all extremities.” (Id. (internal parenthetical
citation omitted).) Concerning Plaintiff’s shortness of breath,
the ALJ remarked that “physical examinations during the period more
often noted that [Plaintiff] denied respiratory problems during
visits,” “[Plaintiff] reported that her asthma was much improved
with Symbicort, and that she had not used her rescue inhaler very
much,” “[p]roviders did not note any respiratory symptoms on
exams,” and “pulmonary function testing was unremarkable with
normal lung volumes.” (Tr. 35 (internal parenthetical citation

omitted).) With respect to Plaintiff’s mental impairments, the ALJ
pointed out that, although “[m]ental status exams noted at times
dysphoric, depressed, or anxious mood and affect[,] . . . at other
times, [Plaintiff] was observed with a euthymic mood, or described
as having a normal mood and affect,” as well as that “providers did
17
not note impairments in thought content, thought process, memory,
concentration, cognition, or orientation,” and “[Plaintiff] was
observed as appropriately dressed and groomed, and described as
pleasant or cooperative.” (Tr. 35-36 (internal parenthetical
citation omitted).) Those findings additionally support the ALJ’s
determination that Plaintiff’s impairments would cause some
impairment, but not disabling impairment, in her ability to stay on
task. See Rebecca J., 2023 WL 3970022, at *3-4 (approving ALJ’s
seven percent off-task limitation that lacked an express
explanation, where ALJ “exhaustively considered the objective
medical evidence” and “built an accurate and logical bridge from
the evidence he recounted to his conclusion [about the plaintiff’s
abilities]” (internal quotation marks omitted)); Bradley N.A., 2026
WL 539874, at *5-6 (determining that ALJ’s discussion of the
medical evidence supported her up to five percent off-task
limitation, “a finding which is legally correct, supported by
substantial evidence, and susceptible to judicial review”).
Furthermore, although Plaintiff contends that “[t]he evidence
in the record shows it is possible [she] could be off task more

than 10% of the workday, which would be work preclusive” (Docket
Entry 9 at 14 (block formatting omitted), Plaintiff has not pointed
to evidence that would have compelled the ALJ to find work-
preclusive off-task time. In support of that assertion, Plaintiff
contends that she might experience off-task time “to recuperate
18
after walking, standing, using stairs, or doing light lifting” due
to shortness of breath, back pain, and leg pain. (Docket Entry 9
at 15 (bold font omitted).) However, Plaintiff bases off-task time
arising from those impairments solely on her subjective complaints
(and her mother’s subjective reports) (see id. at 15-16 (citing Tr.
53, 58, 63-66, 69 (Plaintiff’s hearing testimony), 251-67 (Function
Reports from Plaintiff and her mother))), and the ALJ found
Plaintiff’s subjective symptom reports “not entirely consistent
with the medical evidence and other evidence in the record” (Tr.
34), and specifically found, with regard to Plaintiff’s “rather
significant allegations regarding shortness of breath with almost
any sort of exertion or activity despite medication,” that “a
review of the evidence did not suggest her condition was as severe
or limiting as she alleged” (id. (internal quotation marks
omitted)), findings that Plaintiff did not challenge (see Docket
Entries 9, 13). Indeed, the ALJ clearly did not find that
Plaintiff’s lumbar and respiratory impairments required her to rest
every 15 minutes, as the ALJ found Plaintiff remained able to
“stand and/or walk for 6hrs” without an allowance for rests or

alternating position. (Tr. 32.)
Plaintiff additionally argues that she would need off-task
time “due to panic attacks” which required her to “lay [sic] down
for 15 minutes or longer” (Docket Entry 9 at 15 (bold font
omitted)) and “intermittent explosive disorder, hear[ing] voices,
19
[] mood swings, . . . get[ting] into arguments[,]” and “depression
[that] affects [her] energy level and motivation to complete tasks”
(id. (internal quotation marks omitted)). Again, Plaintiff
primarily supports that allegation with her own (and her mother’s)
subjective statements (id. (citing Tr. 60, 62, 251-67)), but the
ALJ found Plaintiff’s subjective statements “not entirely
consistent with the [] evidence” (Tr. 34), and specifically
observed as follows:
[Plaintiff]’s level of activity [] suggests that she was
not as limited as [s]he implied. Examples included that
she was providing some care to her nephew including
driving him to school. She also managed her own medical
care and finances. . . . [She] reported during the
mental consultative exam that she did not stop working
due to disability, but rather was fired for a violation
of a workplace policy.
(Tr. 36 (internal parenthetical citation omitted).) Notably,
Plaintiff did not challenge those findings by the ALJ. (See Docket
Entries 9, 13.)
Nonetheless, Plaintiff maintains that her “testimony about her
anxiety/depression symptoms including panic attacks, mood swings,
irritability, hearing voices, and depression . . . is supported by
medical evidence in the record.” (Docket Entry 9 at 15.) In
support of that assertion, Plaintiff points to the reconsideration-
level state agency psychological consultant’s statement that
Plaintiff had a “history of hallucinatory experience, mixed
emotions (anxiety and depressive reaction, mood swings,
irritability, anger, fidgety), social avoidance and alleged pain”
20
(id. (citing Tr. 99)), as well as his moderate findings in the
paragraph B criteria (id. at 16 (citing Tr. 98)), and his opinion
that her mental symptoms “‘would occasionally interfere with her
ability for sustained concentration, persistence or for task
completion’” (id. (quoting Tr. 102)). Those statements and
opinions would not have compelled the ALJ to find work-preclusive
levels of off-task time, because a “moderate” finding in the mental
functional area of CPP in the paragraph B criteria meant that
Plaintiff’s ability to sustain CPP remained “fair,” see 20 C.F.R.
Pt. 404, Subpt. P, App’x 1, § 12.00F.2.c (emphasis added), and,
thus, did not equate to a disabling level of off-task time.
Moreover, despite finding Plaintiff’s mental symptoms would
“occasionally interfere” with her ability to maintain CPP, the
consultant also concluded that Plaintiff “would be able to complete
tasks at an acceptable pace” (Tr. 102) and remained able to perform
simple, routine, and repetitive tasks (“SRRTs”) with no allowance
for off task time (see Tr. 98).
Plaintiff additionally relies on the statements of
consultative psychological examiner Janice L. McGilberry, LCMHCS,
LPA (“LPA McGilberry”) that Plaintiff “reported depressed symptoms
3-4 days/week, most of the day; sleep disturbances 2-5 days/week;
irritability and argumentative 1x/week; distracted by extraneous
stimuli; occasionally interrupts or intrudes on others; becomes
distracted in conversations” (id. (citing Tr. 689-90)), as well as

21

LPA McGilberry’s notation that Plaintiff “d[id] not appear to
exaggerate or minimize her problems” (id. (quoting Tr. 691)).
Again, those statements would not have compelled the ALJ to adopt
work-preclusive off-task limitations, because LPA McGilberry
clearly described Plaintiff’s subjective reports of mental
symptoms. (See Tr. 689-90 (reflecting Plaintiff’s reports of
mental symptoms under heading “History of Present Illness” (bold
and all-caps font omitted)).) Significantly, Plaintiff glosses
over the fact that LPA McGilberry’s objective examination did not
reveal CPP deficits (see Tr. 691-92 (documenting no “difficulties
with . . . alertness,” “adequate attention and concentration,” and
error-free serial 3s and mathematical calculations)) and,
consistent with that, LPA McGilberry found that Plaintiff had the
ability to maintain CPP to perform SRRTs without mention of off-
task time (see Tr. 693).
Plaintiff further points to remarks by mental health providers
regarding Plaintiff’s mental symptoms such as panic attacks and
angry blow-ups. (See id. at 17 (citing Tr. 495, 497, 501, 504,
506-07, 509-10, 719, 737-39).) Once again, Plaintiff’s subjective
reports form the basis of those providers’ statements, as the
providers did not indicate that they witnessed Plaintiff
experiencing a panic attack or an angry blow-up and, beyond noting
anxious and depressed mood and affect at times, those providers
documented normal findings on mental status examinations. (See Tr.

22

494, 497, 500, 503, 506, 509, 512, 515, 519, 521, 524, 527, 530,
534, 718-19, 738-39.) Moreover, no provider of record has
diagnosed Plaintiff with intermittent explosive disorder (see Tr.
301-1095), and Plaintiff and her mother have both denied that
Plaintiff had problems getting along with others (see Tr. 256, 518,
691). Furthermore, so far as the record reflects, Plaintiff did
not report “hearing voices” or any other type of auditory
hallucination or psychotic symptom to any of her providers of
record (see Tr. 301-1095), including LPA McGilberry (see Tr. 690)
and consultative medical examiner Dr. Stephen Burgess (see Tr. 700-
O01), and she actually denied psychosis and hallucinations on two
occasions (see Tr. 518, 690).°
In light of the foregoing discussion, Plaintiff has not shown
that the record evidence compelled the ALJ to adopt a work-
preclusive off-task time limitation in the RFC. See Rebecca J.,
2023 WL 3970022, at *3 (“[T]he record. . . is devoid of sufficient
evidence, including opinions and treatment notes, demonstrating
that [the p]laintiff would be off task more than seven percent of
the day ... .” (internal quotation marks omitted)); Stitely v.
Colvin, No. 14-2302, 2015 WL 4621292, at *1 (4th Cir. Aug. 4, 2015)

° Although Plaintiff has, at times in the record, suggested she has
attention deficit disorder (“ADD”) and obsessive-compulsive disorder (“OCD”) (see
Tr. 71, 260, 266), no provider of record has diagnosed Plaintiff with those
mental disorders (see Tr. 301-1095). In fact, LPA McGilberry ruled _out ADD as
a diagnosis based, in part, on Plaintiff’s denials that she “often faill[ed] to
give close attention to details,” “often ha[d] difficulty sustaining attention
in tasks,” and “often ha[d] difficulty organizing tasks” (Tr. 690).
23

(unpublished) (“[The plaintiff] points to no overlooked evidence,
aside from his own allegations, which the [ALJ] found not entirely
credible, that would substantially aid his case.” (emphasis
added)); Bradley N.A., 2026 WL 539874, at *6 (“[The plaintiff] does
not point to any other evidence that would compel greater
limitations than those that the ALJ found. ... [T]he ALJ pointed
to more than substantial evidence showing why [the plaintiff] did
not suffer disabling limitations in... . staying on task. No more
is regquired.”); Welch v. Saul, No. 1:19CV189, 2020 WL 4586882, at
*§ (W.D.N.C. Aug. 10, 2020) (unpublished) (“[T]he ALJ’s
time-off-task limitation is reasonable and supported by evidence in
the record. A claimant has the burden to prove the extent of her
functional limitations; it is not the ALJ’s burden to prove a lack
of limitations. In this case, [the p]llaintiff did not meet the
burden of proving further functional limitations.” (internal
quotation marks, citation, and brackets omitted)).'°

10 Even assuming the evidence Plaintiff described in her brief “shows it
is possible [she] could be off task more than 10% of the workday” (Docket Entry
9 at 14 (emphasis added) (block formatting omitted)), “‘[t]he substantial
evidence standard presupposes a zone of choice within which the decisionmakers
can go either way, without interference by the courts,” and “[a]Jn administrative
decision is not subject to reversal merely because substantial evidence would
have supported an opposite decision.” Bradley N.A., 2026 WL 539874, at *6 (some
internal quotation marks and ellipsis omitted) (quoting Dunn v. Colvin, 607 F.
App’ 264, 266 (4th Cir. 2015)). In Plaintiff’s Reply, she asserts that her
assignment of error raises “legal errors in the ALJ’s decision” (Docket Entry 13
at 5), rather than the ALJ’s failure to support his decision with substantial
evidence, and, thus, that the “‘zone of choice’ doctrine” does “not apply” (id.).
Plaintiff’s attempt to reconfigure her issue on review as a claim of legal error
falls short. Plaintiff has not argued the ALJ violated any statute, regulation,
or SSA policy by including a specific time off-task percentage in the RFC. (See
Docket Entries 9, 13.) Rather, she maintains that the ALJ failed to explain the
off-task finding, i.e., that he did not point to substantial evidence to support
the finding (see id.), and Plaintiff herself points to record evidence she
(continued...)
24

As discussed above, Plaintiff has relied on multiple cases
outside of this district that remanded because the ALJs did not
provide express discussions of the off-task time percentages in the
RFCs. (See Docket Entry 9 at 9-13 (citing Michelle A., Armstrong,
Cross, Beth Ann O., Berry, Abdul K., Keith L., Bibey, Cannon,
Patricia W., Kilgo, Kennedy, Conary, and Kane).) As the Court in
Bradley N.A. noted, most of those out-of-district cases predated
Rebecca J., see Bradley N.A., 2026 WL 539874, at *7, which,
although unpublished, signals the Fourth Circuit’s approval of a
specific off-task time percentage in the RFC that the ALJ did not
expressly explain, but that the court could meaningfully review,
given the ALJ’s discussion of substantial evidence supporting the
off-task limitation and the absence of evidence that compelled a
different outcome, see Rebecca J., 2023 WL 3970022, at *3-4.
Moreover, judges in this district have long held that specific
off-task time percentages in RFCs do not constitute grounds for
remand so long as, like here, the ALJs provide substantial evidence
to support the limitations. See Bradley N.A., 2026 WL 539874, at
*7 & n.7 (citing, inter alia, Doorey v. Kijakazi, No. 1:20CV673,

10 (...continued)
believes supported work-preclusive off-task time (see Docket Entry 9 at 14-17).
As such, the “zone of choice” doctrine remains applicable to Plaintiff’s instant
assignment of error. See Rebecca J., 2023 WL 3970022, at *3-4 (treating the
plaintiff’s challenge to off-task time percentage in RFC as one involving
substantial evidence and finding ALJ’s decision supplied substantial evidence to
support off-task finding); Bradley N.A., 2026 WL 539874, at *6 (noting that “zone
of choice” doctrine permitted ALJ to find the plaintiff would remain off-task for
up to five percent of the workday so long as ALJ supported off-task finding with
substantial evidence).

25

Docket Entry 22 at 14-15 (M.D.N.C. Oct. 26, 2021) (Webster, M.J.)
(five percent), recommendation adopted, slip op. (M.D.N.C. Nov. 16,
2021) (Schroeder, C.J.), Shaw, 2021 WL 3079905, at *8-10 (no more
than ten percent), Link v. Saul, No. 1:19CV662, 2020 WL 5044038, at
*9 (M.D.N.C. Aug. 26, 2020) (unpublished) (up to ten percent),
recommendation adopted, slip op. (M.D.N.C. Sept. 10, 2020) (Biggs,
J.), Manasrh v. Berryhill, No. 1:17CV1125, Docket Entry 15 at 16-20
(M.D.N.C. Dec. 13, 2018) (unpublished) (Webster, M.J.) (five
percent), recommendation adopted, slip op. (M.D.N.C. Jan. 4, 2019)
(Schroeder, C.J.)); see also Christopher §.S. v. O’Malley, No.
1:23CV341, Docket Entry 13 at 10-16 (M.D.N.C. June 24, 2024)
(unpublished) (Webster, M.J.) (three percent); Wesley v. Kijakazi,
No. 1:20CV364, 2021 WL 4129234, at *7-9 (M.D.N.C. Sept. 9, 2021)
(unpublished) (no more than 10 percent), recommendation adopted,
slip op. (M.D.N.C. Oct. 14, 2021) (Tilley, S.J.). Given the Fourth
Circuit’s ruling in Rebecca J. and the above-cited long line of
cases from this district upholding specific off-task time
limitations where supported by substantial evidence, the Court
declines to follow the reasoning of the out-of-district cases cited
by Plaintiff.
In sum, because the ALJ sufficiently explained the three
percent off-task time limitation in the RFC to permit meaningful
judicial review, Plaintiff’s first and only issue on review fails
as a matter of law.

26

III. CONCLUSION
Plaintiff has not established an error warranting remand.
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is AFFIRMED, and that this action is
DISMISSED with prejudice.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 2, 2026

27

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11299619. Public record. Not legal advice.