Donta L. H. v. Frank J. Bisignano, Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DONTA L. H., )

)

Plaintiff, )

)

v. ) 1:24CV1085

)

FRANK J. BISIGNANO, )

Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Donta L. H., 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 claims for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income

(“SSI”). (Docket Entry 2.) 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 10

(Plaintiff’s Brief); Docket Entry 13 (Commissioner’s Brief); Docket

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).

Entry 14 (Plaintiff’s Reply)). For the reasons that follow, the

Court will enter judgment for the Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI (Tr. 237-79), alleging a

disability onset date of May 20, 2020 (see Tr. 237, 243, 263, 273).

Upon denial of those applications initially (Tr. 85-103, 136-45)

and on reconsideration (Tr. 104-31, 155-62), Plaintiff requested a

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

(Tr. 164-65). Plaintiff, his attorney, and a vocational expert

(“VE”) attended the hearing. (Tr. 46-84.) The ALJ subsequently

ruled that Plaintiff did not qualify as disabled under the Act.

(Tr. 11-45.) The Appeals Council thereafter denied Plaintiff’s

request for review (Tr. 1-6, 234-36, 402-06), thereby making the

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

judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2025.

2. [Plaintiff] has not engaged in substantial gainful

activity since May 20, 2020, the alleged onset 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 9 at 1.)

2

3. [Plaintiff] has the following severe impairments:

degenerative disc disease; obesity; sleep apnea; diabetes

mellitus; cardiac dysrhythmias (arrhythmias); other

disorders of the respiratory system; depression, bipolar

and related disorders; anxiety and obsessive-compulsive

disorder; substance addiction disorders (drugs and

alcohol); post-traumatic stress disorder (PTSD);

schizophrenia spectrum and other psychotic disorders; and

personality disorders.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform less than the full range of light

work . . . in that he can lift, carry, push, and pull 20

pounds occasionally and 10 pounds frequently; stand

and/or walk six hours in an eight-hour workday; sit six

hours in an eight-hour workday; frequently climb ladders,

ropes, and scaffolds; frequently stoop; occasionally work

at unprotected heights and around moving mechanical

parts; and occasionally work in dust, odors, fumes, and

pulmonary irritants. He is able to understand, remember,

and carry out instructions by performing simple, routine,

repetitive tasks but not at a production rate pace (e.g.,

assembly line work). He is able to perform simple work-

related decisions. He is able to frequently interact

with supervisors and coworkers and occasionally interact

with the public.

. . .

6. [Plaintiff] is unable to perform any past relevant

work.

. . .

10. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

3

. . .

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from May 20, 2020, through the

date of th[e ALJ’s] decision.

(Tr. 16-40 (bold font and internal parenthetical citations omitted)

(space added).)

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

4

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

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

5

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).3 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

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

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

3 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. [SSI] . . . provides benefits to indigent disabled persons. The

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).

6

F.3d 473, 475 n.2 (4th Cir. 1999).4 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

and ends the inquiry. For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’

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 179.5 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. Id. at 179-80. However, if the

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

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

5 “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

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the 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 government cannot

carry its “evidentiary burden of proving that [the claimant]

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.6

B. Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ did not explain why Plaintiff’s subjective

complaints were deemed inconsistent with the evidence of record,

and the evaluation of the evidence does not provide a clear path to

[the ALJ’s] reasoning” (Docket Entry 10 at 3 (bold font and block

formatting omitted); see also Docket Entry 14 at 1-3);

2) “[t]he ALJ erred by failing to develop the record as

requested by Plaintiff’s hearing representative” (Docket Entry 10

at 9 (bold font omitted); and

6 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

8

3) “[t]he ALJ’s failure to ask the VE to consider as a

vocational factor the hypothetical claimant’s classification as one

closely approaching advanced age is error that invalidates the VE’s

testimony at [s]tep 5 [of the SEP]” (id. at 13 (bold font and block

formatting omitted); see also Docket Entry 14 at 3-4).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 13 at 4-19.)

1. Plaintiff’s Subjective Symptom Reports

In Plaintiff’s first issue on review, he maintains that “[t]he

ALJ did not explain why Plaintiff’s subjective complaints were

deemed inconsistent with the evidence of record, and the evaluation

of the evidence does not provide a clear path to [the ALJ’s]

reasoning.” (Docket Entry 10 at 3 (bold font and block formatting

omitted); see also Docket Entry 14 at 1-3.) More specifically,

Plaintiff contends that, although the ALJ found “[Plaintiff’s]

statements concerning ‘the intensity, persistence, and limiting

effects of [his] symptoms [] not entirely consistent with the

medical evidence and other evidence of record for the reasons

explained in th[e ALJ’s] decision’” (Docket Entry 10 at 4 (quoting

Tr. 22)), “the ALJ never discussed Plaintiff’s testimony or

[F]unction [R]eports after th[at] point[, and instead] describe[d]

two instances of purported inconsistency, provide[d] a lengthy

recitation of the medical evidence, in general, and then f[ound]

Plaintiff not disabled” (id.). In that regard, Plaintiff

9

challenges both of the inconsistencies upon which the ALJ relied

(see id. at 4-7), and argues that “[t]he [ALJ’s] recitation of

medical evidence is no substitute for an evaluation of Plaintiff’s

subjective complaints” (id. at 8 (citing Tyndall v. Kijakazi, No.

5:22CV403, 2023 WL 7149493, at *6 (E.D.N.C. Oct. 31, 2023)

(unpublished))). In Plaintiff’s view, “[t]he ALJ’s conclusion

regarding Plaintiff’s subjective complaints is barren of rationale,

and further administrative proceedings are warranted.” (Id. at 9.)

For the reasons explained in more detail below, Plaintiff’s

contentions lack merit.

The Commissioner’s regulations adopt a two-part test for

evaluating a claimant’s statements about symptoms. See 20 C.F.R.

S§ 404.1529, 416.929; see also Social Security Ruling 16-3p, Titles

Il & XVI: Evaluation of Symptoms in Disability Claims, 2017 WL

5180304, at *3 (Oct. 25, 2017) (“SSR 16-3p”). First, the ALJ must

determine whether a claimant suffers from a “medically determinable

impairment that could reasonably be expected to produce [the

claimant]’s symptoms, such as pain.” 20 C.F.R. §§ 404.1529 □□□□

416.929(b); see also 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 “which could reasonably be expected to produce the pain

or other symptoms alleged.” 20 C.F.R. §§ 404.1529(a), 416.929 □□□□

see also SSR 16-3p, 2017 WL 5180304, at *3. “Objective medical

evidence” consists of medical “[s]ligns” (“anatomical,

10

physiological, or psychological abnormalities that can be observed,

apart from [a claimant’s] statements” and that “must be shown by

medically acceptable clinical diagnostic techniques,” 20 C.F.R.

§§ 404.1502(g), 416.902(l)) and “[l]aboratory findings”

(“anatomical, physiological, or psychological phenomena that can be

shown by the use of medically acceptable laboratory diagnostic

techniques,” 20 C.F.R. §§ 404.1502(c), 416.902(g)). See 20 C.F.R.

§§ 404.1502(f), 416.902(k); see also SSR 16-3p, 2017 WL 5180304, at

*3.

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 limit [his or her] capacity

for work.” 20 C.F.R. §§ 404.1529(c), 416.929(c); see also SSR 16-

3p, 2017 WL 5180304, 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.” SSR 16-

3p, 2017 WL 5180304, at *4. Where relevant, the ALJ will also

consider the following factors in assessing the extent of the

claimant’s symptoms at part two:

11

1. [ D]aily activities;

2. The location, duration, frequency, and intensity of []

pain or other symptoms;

3. Precipitating and aggravating factors;

4. The type, dosage, effectiveness, and side effects of

any medication [a claimant] take[s] or ha[s] taken to

alleviate [] pain or other symptoms;

5. Treatment, other than medication, [a claimant]

receive[s] or ha[s] received for relief of [] pain or

other symptoms;

6. Any measures [a claimant] use[s] or ha[s] used to

relieve [] pain or other symptoms (e.g., lying flat on

[his or her] back, standing for 15 to 20 minutes every

hour, or sleeping on a board, etc.); and

7. Any other factors concerning [a claimant’s] functional

limitations and restrictions due to pain or other

symptoms.

20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 16-3p,

2017 WL 5180304, at *7-8. The ALJ cannot “reject [a claimant’s]

statements about the intensity and persistence of pain or other

symptoms or about the effect [those] symptoms have on [the

claimant’s] ability to work solely because the available objective

medical evidence does not substantiate [the claimant’s]

statements.” 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (emphasis

added); see also SSR 16-3p, 2017 WL 5180304, at *5.

In this case, the ALJ found, at part one of the subjective

symptom analysis, that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” but then determined, at part two, that Plaintiff’s

12

“statements concerning the intensity, persistence and limiting

effects of [his] symptoms [we]re not entirely consistent with the

medical evidence and other evidence in the record for the reasons

explained in th[e ALJ’s] decision.” (Tr. 22.) Immediately

following those findings, the ALJ provided this analysis:

As for [Plaintiff]’s statements about the intensity,

persistence, and limiting effects of his symptoms, they

are inconsistent because he testified he had never missed

a day of Abilify; however, in November 2021, he said he

ran out of Abilify and Zoloft. He was sent a bridge

prescription when he ran out of medications, but he did

not pick them up. He stated he often yelled or got angry

with people; however, he denied being irritable or having

angry episodes since starting Abilify.

(Id. (internal parenthetical citation omitted).)

Plaintiff first challenges the ALJ’s observation that

Plaintiff’s testimony that he had never missed a day of Abilify

conflicted with his statement to his mental health provider in

November 2021 that he had run out of Abilify and Zoloft (see id.

(referencing Tr. 65, 468)). (See Docket Entry 10 at 4-6.)

According to Plaintiff, “[he] messaged his provider on October 27,

2021, stating he ran out of med[ication]s and requesting a bridge

prescription, but did not pick it up prior to the November 2, 2021,

appointment” (id. at 5 (citing Tr. 468)) and, thus, Plaintiff

argues that “[t]he ALJ is criticizing Plaintiff for requesting a

medication refill on a Wednesday, and not picking it up by his

appointment the following Tuesday” (id.). In Plaintiff’s view,

“[t]his is not a failure to treat, but a one-time lapse in

13

consistent treatment” (id.) and, in any event, “the ALJ was

required to consider possible reasons for [Plaintiff’s] failure to

treat before finding Plaintiff’s symptoms ‘inconsistent with the

evidence of record on that basis’” (id. (quoting Long v. Kijakazi,

No. 7:21CV176, 2023 WL 2338027, at *6 (E.D.N.C. Jan. 10, 2023)

(unpublished), recommendation adopted, 2023 WL 2333887 (E.D.N.C.

Mar. 2, 2023) (unpublished))). Plaintiff additionally maintains

that, “if the ALJ intended to portray Plaintiff as untruthful due

to this mix-up, it would be somewhat absurd[,]” because “[t]he ALJ

would be characterizing Plaintiff as deceitful for not remembering

that he ran out of medications for less than one week in November

of 2021, almost two years prior to the September 2023 hearing.”

(Id.) Plaintiff further asserts that “[a]sking Plaintiff if he has

ever missed one day of medication is a setup for a ‘gotcha’ and not

a legitimate reason to reject Plaintiff’s symptoms.” (Id. at 5-6.)

As an initial matter, in pointing out the inconsistency

between Plaintiff’s testimony and the record regarding lapses in

Abilify, the ALJ made no finding that Plaintiff had failed to

follow prescribed treatment under SSR 16-3p (see Tr. 22), and,

thus, labored under no obligation “to consider possible reasons for

[Plaintiff]’s failure to treat” (Docket Entry 10 at 5). See SSR

16-3p, 2017 WL 5180304, at *9 (“[The ALJ] will not find

a[ claimant]’s symptoms inconsistent with the evidence in the

record on th[e] basis [that the claimant failed to follow

14

prescribed treatment that might improve symptoms] without

considering possible reasons he or she may not comply with

treatment or seek treatment consistent with the degree of his or

her complaints”).

Moreover, although the conflict between Plaintiff’s testimony

at the September 2023 hearing that he had never missed a day of

Abilify (see Tr. 65) and record evidence that he had run out of

Abilify (and Zoloft) in November 2021 (see Tr. 465) did not provide

compelling evidence of an inconsistency in the evidence, as the

Commissioner points out, the ALJ’s observation nevertheless held

some relevance to his assessment of the intensity of Plaintiff’s

mental symptoms:

As the ALJ noted, . . . in November 2021, Plaintiff ran

out of two of his medications, Abilify and Zoloft, for

over a week, and he thereafter reported increased

symptoms of anxiety, hopelessness, anhedonia, and

isolation as a result (Tr. 22; Tr. 26[ (]citing Tr. 468-

87[)]). Th[e ALJ’s] point was important because

Plaintiff’s compliance with medication significantly

reduced his mental health symptoms; it was not merely a

“setup for a ‘gotcha’” as Plaintiff contends ([Docket

Entry] 10 at 5). After restarting Abilify and Zoloft,

Plaintiff reported in December 2021 that his mood was

stable and he denied irritability or anger outbursts, his

anxiety was well-managed, and his sleep had improved (Tr.

26[ (] citing Tr. 499-509[)]). Plaintiff reported in

March 2023 that “as long as I take my medicine, I’m good”

(Tr. 31[ (] citing Tr. 1389-1400[)]; see Tr. 1395).

(Docket Entry 12 at 8.)

Plaintiff next objects to the ALJ’s remark “that ‘[Plaintiff]

stated he often yelled or got angry with people; however, he denied

being irritable or having angry episodes since starting Abilify.”

15

(Docket Entry 10 at 6 (quoting Tr. 22 (in turn referencing Tr. 62-

63, and citing Tr. 493)).) According to Plaintiff, “[t]his is not

entirely accurate, as Plaintiff did not testify to lashing out at

people in his every day life, but while at work.” (Id.; see also

id. (quoting Tr. 62-63 (reflecting Plaintiff’s answer “[y]es,

often” to counsel’s question at hearing if, “at work, . . . [he]

ever shout[ed] at people”).) Although Plaintiff acknowledges that,

“[i]n the November 2021 treatment note - over a year after he

stopped working - [he] reported feeling less irritable and denied

having any anger issues since starting Abilify” (id. (citing Tr.

493)), Plaintiff points out that “he no longer had to deal with

coworkers or even other people, generally, as he spen[t] most of

his time alone” (id. (citing Tr. 67)). Plaintiff additionally

asserts that “[his] condition changing between 2021 and 2023 is not

unusual, and is also not a reason to discount his subjective

symptoms.” (Id. at 7; see also id. (citing SSR 16-3p, 2017 WL

5180304, at *9 (providing that “inconsistencies in an individual’s

statements made at varying times does not necessarily mean they are

inaccurate,” as “[s]ymptoms may vary in their intensity,

persistence, and functional effects, or may worsen or improve with

time”)).)

Plaintiff’s attempt to limit his alleged irritability and

anger outbursts to the work setting falls short. Indeed, the

16

testimony upon which Plaintiff relies presents a more nuanced

picture of Plaintiff’s problems with anger:

[ATTORNEY:] So, if I were to let’s say, you know, get

you a job bagging groceries at the local

grocery store, what would be the issue

with you doing that? But you’d have to

be there eight hours a day, five days a

week[.]

[PLAINTIFF:] Picking up the bags now, my back is so

out of shape. And it’s hard for me to be

around people. I know when I go to the

grocery store by myself, I have a hard

time.

[ATTORNEY:] Okay. Do you ever yell or get angry with

people? Like when you were at work, did

you get in shouting – did you ever shout

at people?

[PLAINTIFF:] Yes, often.

(Tr. 62-63 (emphasis added).) As the language emphasized above

makes clear, Plaintiff testified that he had a hard time being

around people in grocery stores, i.e., when not in a work setting.

(See Tr. 62.) Moreover, due to the compound nature of the last two

of counsel’s questions quoted above, the record remains ambiguous

whether Plaintiff responded “[y]es, often” to “yell[ing] or

get[ting] angry with people” in general or to “shout[ing] at

people” at work, or both. (Tr. 62-63.) In any event, as the

Commissioner points out, “Plaintiff’s own reports to his medical

providers and [] consultative [medical] examiner [Keisha Dixon, PA-

C (‘PA Dixon’)] support the ALJ’s understanding - this was not

merely work-related irritability.” (Docket Entry 13 at 9 (citing

17

Tr. 413 (“[Plaintiff r]eports extensive history of disobedient

behavior growing up, episodes of angry outbursts.”), 693

(“[Plaintiff] states he is aggravated and frustrated easily, and

has a bad temper.”)); see also Tr. 417 (reporting, on February 17,

2021, three arguments since his last mental health visit one month

earlier, and describing his “anger outbursts” as “improving”), 423

(documenting Plaintiff’s report, on March 23, 2021, of one “anger

outburst” at grocery store).) Thus, the ALJ properly found that

Plaintiff’s hearing testimony that he often “yell[ed] and g[o]t

angry with people” (Tr. 62-63) conflicted with his November 2021

statement to a mental health provider “den[ying] feeling irritable

or having anger episodes since restarting Abilify” (Tr. 493; see

also Tr. 499 (same on Dec. 21, 2021), 510 (same on Jan. 18, 2022),

889 (same on May 10, 2022)). (See Tr. 22.)

Plaintiff additionally maintains that, “[o]ther than the[] two

[inconsistencies discussed above], it does not appear that the ALJ

evaluated Plaintiff’s subjective complaints at any point,” because

“[t]he ALJ continue[d] on to provide a lengthy summary of the

medical evidence in the file, without any criticisms of Plaintiff’s

testimony, activities of daily living, or other factors[,]”

“described why [the ALJ] formulated Plaintiff’s RFC in a certain

way,” “evaluate[d] the opinion evidence of record, and conclude[d]

that Plaintiff was not disabled.” (Docket Entry 10 at 7 (internal

parenthetical citations omitted) (citing Tr. 22-40).) In

18

Plaintiff’s view, “the recitation of medical evidence is no

substitute for an evaluation of Plaintiff’s subjective complaints.”

(Id. at 8 (citing Tyndall, 2023 WL 7149493, at *6).)

Plaintiff’s argument glosses over the following analysis by

the ALJ, which expressly compared Plaintiff’s subjective statements

with the evidence of record:

Regarding [Plaintiff]’s mental impairments, he has

anxiety, PTSD, schizophrenia spectrum and other psychotic

disorders, a personality disorder, and substance addition

disorders (drugs and alcohol). He had one episode when

his thoughts were non-linear and disorganized, and he had

flight of ideas ([Tr. 415]). Once he was on medication,

however, his thought processes were logical and linear,

with intact associations. His insight was fair, and his

judgment was appropriate. His memory was normal ([Tr.

425-26]), even though he reported short-term memory

deficits ([Tr. 692-700]). He also reported concentration

deficits and said he did not like tasks requiring

sustained attention. He indicated he often did not

finish tasks. He reported difficulty staying in his seat

and stated he had restlessness and racing thoughts ([Tr.

407, 413, 692-700]). However, on mental status testing,

his attention and concentration were normal ([Tr. 415,

425-26]). He indicated he had daily flashbacks but good

energy ([Tr. 413, 423, 438]). The [ALJ] finds due to

[Plaintiff]’s mental impairments, he can perform only

simple, routine, repetitive tasks but not at a production

rate pace (e.g., assembly line work).

[Plaintiff] said the medications keep his auditory

hallucinations under control. He indicated the

medication reduced the frequency and intensity of the

hallucinations. He stated large crowds trigger

hallucinations, and he had one every three to four weeks.

He reported methadone was effective for his opioid

addiction. He indicated his therapy is helpful, and he

can perform his personal care (Hearing Testimony). In

April 2020, he said he smoked crack cocaine and then

snorted heroin, all while drinking beer. He was

successfully given Narcan and tested positive for opiates

and cocaine ([Tr. 648-53]). In December 2020, he was

working with a peer support person and had recently

19

stopped using drugs. He had anxiety, passive suicidal

ideation, and a labile mood. He had a history of

childhood abuse and reported flashbacks and nightmares.

His mood was depressed and anxious/fearful, and his

affect was appropriate. He reported auditory and visual

hallucinations ([Tr. 407-12]). In January 2021, he

indicated he had anger outbursts and mood swings. He

reported anxiety over little things. He was very tearful

and had a labile affect. His mood was irritable and

anxious/fearful ([Tr. 413-16]). In February 2021, he

said he was doing better and had no side effects from the

medication. His anger and outbursts were better. He

reported four months of sobriety ([Tr. 417-22]).

In March 2021, he said he was doing well and had one

anger outburst since the last visit ([Tr. 423-29]). In

April 2021, he stated everything was going well. He had

no anger outbursts, and his mood was more stable. He

denied panic attacks ([Tr. 430-37]). In May 2021, his

mood was stable, and his anxiety was manageable. He had

not had any panic attacks. He reported one episode of

using heroin, crack cocaine, and [flentanyl. He had a

normal mental status exam, except his mood was

anxious/fearful, and he reported auditory hallucinations

({[Tr. 438-46]). In July 2021, his anxiety was

well-managed, and he denied panic attacks. He reported

he drank a 12-pack of beer daily but had cut back to

every two or three days ([Tr. 447-56]). In August 2021,

his mood was stable, and his depression and anxiety were

well-managed on Abilify, Zoloft, and Prazosin. He hada

normal mental status exam ([Tr. 457-67]). In November

2021, he stated he had been out of his medications for a

week and had increased anxiety ([Tr. 468-87]). He was

drinking less beer. He restarted Abilify ([Tr. 488-98]).

In December 2021, his mood was stable, and []he was

restarted on Zoloft. His anxiety was well-managed ([Tr.

499-509]). In May 2022, he said things were going well.

He said he had quit drinking alcohol but would have two

wine coolers if he was at _a_social function, which was

not often. He indicated Abilify was helpful for

maintaining a stable mood and preventing psychotic

symptoms ([Tr. 889-98]). In August 2022, he said he was

frustrated easily and had a bad temper. He reported

nightmares and anxiety over small tasks ([Tr. 692-700]).

In October 2022, he had a stable mood and no

hallucinations since July ([Tr. 909-18]). In March 2023

he continued to have a stable mood and reported sobriety

of two years. He said he did not have hallucinations as

20

long as he took his medications, and he had no nightmares

on Prazosin ([Tr. 1389-90, 1402, 1407]). In July 2023,

his mood was ok, and he had no hallucinations or suicidal

ideation ([Tr. 1414]). The [ALJ] finds that although

[Plaintiff] has some symptoms of mood swings, anxiety,

and hallucinations, and has engaged in alcohol and drug

use, his mental health impairments are improved on

psychotropic medications. Therefore, the [ALJ] finds

[Plaintiff] can perform simple work-related decisions.

[Plaintiff] also has some social difficulties. He is

paranoid and thinks people are talking about him or are

out to get him, but Abilify helps. He reported

difficulty being around people at the grocery store. He

said large crowds trigger his hallucinations, and he

tries to get away from the crowd at the bus stop. He

stated he does not really socialize with his children

much but can tolerate his grandchildren for a little

while (Hearing Testimony). He has a history of

antisocial behavior and past assaults. He indicated he

hears voices telling him to harm people ([Tr. 407-12]).

In February 2021, he stated he was doing better on

medication and only had three arguments since the last

visit but was able to walk away. He reported thought[s]

of wanting to hurt others and was irritable but

cooperative ([Tr. 417-29]). However, in July 2021, he

was having a cookout for his wife on her birthday on the

weekend ([Tr. 738-42]).°7 In November 2021, he was

attempting to get out of his room and be more social. He

denied feeling irritable or having anger episodes since

restarting Abilify ([Tr. 488-98]). In December 2021, he

denied irritability or anger outbursts ([Tr. 499-509]).

In May 2022, he was continuing to work with the peer

support person and reported going to social functions

occasionally ([Tr. 889-98]). In July 2023, he said he

was isolating more ([Tr. 1414]). The [ALJ] finds

[Plaintiff] can be social on medication, but he more

likely isolates. He has some paranoia and thoughts of

hurting others, which he has not acted on. The [ALJ]

finds due to his social difficulties, [Plaintiff] can

7 Although the ALJ cited to Exhibit 6F, pages 38 through 42, as support for

the statement that, “in July 2021, [Plaintiff] was having a cookout for his wife

on her birthday on the weekend” (Tr. 36 (citing Tr. 738-42)), those pages do not

contain any reference to a cookout and reflect a primary care treatment note from

May 2021. The record does contain a mental health treatment note dated July 13,

2021, which reflects that “[Plaintiff] is having a cookout for wife’s bday this

weekend.” (Tr. 447.)

21

only have frequent interaction with supervisors and

coworkers and occasional interaction with the public.

(Tr. 35-36 (emphasis added).)

As the language emphasized above makes clear, the ALJ

considered Plaintiff’s subjective statements to his mental health

providers throughout the relevant time period in this case,

including his report of “short-term memory deficits” (Tr. 35

(citing Tr. 692-700)) and “concentration deficits,”

“restlessness[,] and racing thoughts” (id. (citing Tr. 407, 413,

692-700)), but found them inconsistent with the record evidence

(see id.), and provided explanations as to how the ALJ determined

the limitations in the mental RFC (see Tr. 35-36). The ALJ’s

analysis, as emphasized above, also demonstrates that he expressly

considered Plaintiff’s “daily activities,” the “duration,

frequency, and intensity” of Plaintiff’s reported mental symptoms,

“[p]recipitating and aggravating factors,” the “effectiveness[] and

side effects of any medication [Plaintiff] t[ook] . . . to

alleviate [his mental] symptoms,” and “[t]reatment, other than

medication,” such as therapy, “[Plaintiff] receive[d] . . . for

relief of [his mental] symptoms,” 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3); see also SSR 16-3p, 2017 WL 5180304, at *7-8. The

applicable regulations and SSR 16-3p required nothing more of the

ALJ.

In light of the foregoing analysis, Plaintiff has not

demonstrated that the ALJ erred in his evaluation of Plaintiff’s

22

subjective symptom reporting and, thus, Plaintiff’s first

assignment of error fails as a matter of law.

2. Failure to Develop the Record

Next, Plaintiff contends that “[t]he ALJ erred by failing to

develop the record as requested by Plaintiff’s hearing

representative.” (Docket Entry 10 at 9 (bold font omitted).) In

particular, Plaintiff asserts that “the ALJ erred by failing

to . . . obtain[] a consultative examination related to Plaintiff’s

mental health conditions.” (Id. at 10.) In that regard, Plaintiff

notes that “[t]he record contains a few opinions which speak to his

mental health, although none are useful” (id.), because the state

agency psychological consultant at the initial level of review

“opined that Plaintiff’s mental health impairments were non-severe,

which the ALJ properly found unpersuasive” (id. at 10-11 (internal

parenthetical citation omitted) (citing Tr. 37, 91)), and the

reconsideration-level state agency psychological consultant’s

“opinion is too vague to provide any meaningful insight, as the

restrictions are entirely undefined” (id. at 11 (citing Tr. 111,

115-16)). Plaintiff further notes that the ALJ found PA Dixon’s

opinion that Plaintiff’s “‘mental health conditions [we]re not

conducive for a work environment’ . . . vague and not presented in

vocationally relevant terms,” as well as “on an issue reserved to

the Commissioner.” (Id. (quoting Tr. 695, and citing Tr. 37).)

According to Plaintiff, “[his] representative has been requesting

23

development of the record since before the hearing” (id.), in that,

“[a]t the hearing, [the] representative alluded to her pre-hearing

brief, which . . . stated that a consultative mental examination

may be necessary” (id. (referencing Tr. 52-53, and citing Tr.

390)), argued in her closing remarks at the hearing that “‘maybe a

further consultative examination needs to be done’” (id. (quoting

Tr. 82)), and “challenged th[e ALJ’s failure to order a

consultative psychological examination] in her brief to the Appeals

Council” (id. (citing Tr. 403)). In Plaintiff’s view, “[t]he

inclusion of a [consultative psychological examination] report

would [] likely change the outcome of the case” (id. at 13),

because the VE testified that, “if Plaintiff was unable to

consistently maintain his behavior, or was disrupting others on a

regular basis, he would be unable to maintain gainful employment”

(id. (citing Tr. 80-81)). Those contentions miss the mark.

Although “the ALJ has a duty to explore all relevant facts and

inquire into the issues necessary for adequate development of the

record,” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986), the

ALJ “is not required to act as [a] claimant’s counsel,” and “is

entitled to assume that a claimant represented by counsel is making

h[is] strongest case for benefits,” Jason L. v. O’Malley, No.

3:23CV307, 2024 WL 1152405, at *11 (S.D.W. Va. Feb. 29, 2024)

(unpublished) (internal quotation marks omitted), recommendation

adopted, 2024 WL 1149282 (S.D.W. Va. Mar. 15, 2024) (unpublished).

24

In order to fulfill the ALJ’s duty to develop the record, the ALJ

“may” order a consultative examination “to try to resolve an

inconsistency in the evidence, or when the evidence as a whole is

insufficient to allow [the ALJ] to make a determination or decision

on [the] claim,” 20 C.F.R. §§ 404.1519a(b), 416.919a(b) (emphasis

added); see also Bishop v. Barnhart, 78 F. App’x 265, 268 (4th Cir.

2003) (noting that “regulations state that the ALJ has discretion

in deciding whether to order a consultative examination” and

“further provide that a consultative examination is required when

the evidence as a whole is insufficient to support a decision”

(internal citation omitted) (citing 20 C.F.R. §§ 404.1519a,

416.919a)).

To begin, Plaintiff’s assertion that “[his] representative has

been requesting development of the record since before the hearing”

(Docket Entry 10 at 12 (emphasis added)) overstates his counsel’s

actions with regard to a potential consultative psychological

examination. Although Plaintiff’s counsel’s pre-hearing brief

observed that, “[g]liven [PA Dixon]’s assessment [that Plaintiff’s

mental health conditions were not conducive to a work environment],

a consultative examination to further expand the scope of evidence

of mental impairments may be necessary” (Tr. 390 (emphasis added)),

counsel did not make a request of the ALJ to order a consultative

psychological examination (see Tr. 389-91; see also Tr. 392

(counsel’s pre-hearing “Five Day Letter” advising ALJ of

25

outstanding medical records but failing to request consultative

psychological examination)). Moreover, at the hearing, counsel

referenced her earlier statement in the pre-hearing “brief that

maybe a further consultative examination needs to be done” (Tr. 82

(emphasis added)), but again failed to request the ALJ to order a

consultative psychological examination (see Tr. 82-84). Indeed,

counsel indicated at the outset of the hearing that she had no

“objections to the exhibits in the file” (Tr. 51), and deemed the

record “complete” (Tr. 52 (emphasis added)). “[Plaintiff], through

counsel, [may not] rest on the record... and later fault the ALJ

for not performing a more exhaustive investigation.” Perry v.

Astrue, No. 3:10CV1248, 2011 WL 5006505, at *15 (S.D.W. Va. Oct.

20, 2011) (unpublished) (quoting Maes v. Astrue, 522 F.3d 1093,

1097 (10th Cir. 2008)); see also Savage v. Saul, No. 3:20CV482,

2021 WL 2168909, at *8 (S.D.W. Va. May 7, 2021) (unpublished)

(rejecting the plaintiff’s argument that “ALJ erred in her duty to

develop the administrative record” where, “during the hearing, the

ALJ asked [the plaintiff]’s counsel if he had reviewed the

electronic record[] and . . . if it was up to date, and he

responded, ‘To the best of our ability, Your Honor[]’ .. . [and]

did not assert that anything was missing from the administrative

record” (some internal quotation marks omitted)}), recommendation

adopted, 2021 WL 2169514 (S.D.W. Va. May 27, 2021) (unpublished).

26

Beyond counsel’s failure to request a consultative

psychological examination, the record undermines Plaintiff’s

assertion that “none” of the “opinions which speak to his mental

health . . . [was] useful.” (Docket Entry 10 at 10.) Although the

ALJ rejected the initial-level state agency psychological

consultant’s opinion that Plaintiff’s mental impairments qualified

as non-severe (see Tr. 37; see also Tr. 90-91, 98-99), the ALJ

found “persuasive” the reconsideration-level state agency

psychological consultant’s opinions (Tr. 37), which included a

finding that Plaintiff’s mental impairments qualified as “severe”

(Tr. 110-11, 123-24), as well as opinions that:

• “it is plausible to assume that any high-stress or

complex work or work involving conflict such as a

collections call center could exacerbate

[Plaintiff’s mental health symptoms], including

stress possibly leading to resumption of substance

abuse” (Tr. 111, 124);

• “[Plaintiff] will have difficulty with retaining

and executing some complex work tasks” (Tr. 115,

128); and

• “[i]t is [] in the interest of [Plaintiff] to limit

[him] to [simple, routine, and repetitive tasks

(‘SRRTs’)] in a low-stress, stable setting with

minimal interaction” (Tr. 111, 124).

Contrary to Plaintiff’s assertions, those opinions provide

“vocationally relevant guidance” and qualify neither as “undefined”

nor “vague” (Docket Entry 10 at 11). See Marvin F. v. Kijakazi,

No. 9:22CV3019, 2023 WL 5056950, at *12 (D.S.C. June 12, 2023)

(unpublished) (holding that ALJ did not fail to develop record by

27

not ordering consultative psychological examination where “the

record had sufficient medical evidence for the ALJ to make an

informed decision[,]” including “the prior administrative medical

findings of state agency psychological experts[,]” who “are highly

qualified and experts in Social Security disability evaluation”

(internal quotation marks omitted)), recommendation adopted, 2023

WL 5041324 (D.S.C. Aug. 7, 2023) (unpublished).

Moreover, consistent with the ALJ’s decision to find the

reconsideration-level consultant’s opinions “persuasive” (Tr. 37),

the ALJ’s RFC includes limitations to SRRTs, no work involving a

production rate pace or an assembly line, simple work-related

decisions, frequent interaction with supervisors and co-workers,

and occasional interaction with the public (see Tr. 20). Beyond

that consultant’s specific mental limitations, which the ALJ

incorporated into the RFC, the record also contains extensive

records of Plaintiff’s mental health treatment during the relevant

period in this case (see Tr. 407-525, 841-918, 1366-1425), and

Plaintiff (through counsel) denied that the record lacked any of

his treatment records (see Tr. 51-52).

Under such circumstances, the ALJ had before him an adequate

record of Plaintiff’s mental impairments, and Plaintiff has not

shown that the ALJ failed to fulfill his duty to develop the record

by not ordering a consultative psychological examination. See

McInerney v. Commissioner of Soc. Sec., No. 2:15CV339, 2016 WL

28

4651372, at *5 (M.D. Fla. Sept. 7, 2016) (unpublished) (“[T]he lack

of a psychological consultative examination does not render the

record incomplete or inadequate. The ALJ’s opinion thoroughly

evaluated [the p]laintiff’s medical evidence related to his mental

health treatment, including evidence that was not available to the

[reconsideration-level state agency] psychological

consultant . . . . The record was sufficient for the ALJ to

evaluate [the p]laintiff’s mental impairments, and does not show

any gaps in evidence necessary to demonstrate prejudice.”).

Put simply, Plaintiff’s second issue on review lacks merit.

3. Age as a Vocational Factor

In Plaintiff’s third and final issue on review, he maintains

that “[t]he ALJ’s failure to ask the VE to consider as a vocational

factor the hypothetical claimant’s classification as one closely

approaching advanced age is error that invalidates the VE’s

testimony at [s]tep 5 [of the SEP].” (Docket Entry 10 at 13 (bold

font and block formatting omitted); see also Docket Entry 14 at 3-

4.) In that regard, Plaintiff notes that “[t]he ALJ’s reliance on

VE testimony was premised on whether ‘jobs exist in the national

economy for an individual with Plaintiff’s age, education, work

experience, and [RFC]’” (Docket Entry 10 at 14 (quoting Tr. 39-

40)), and thus argues that “the VE must be familiar with the

Plaintiff’s age, education, work experience, and RFC as a

prerequisite to providing [s]tep [f]ive testimony” (id.), but that

29

“Plaintiff’s age [wa]s never mentioned in the transcript of

Plaintiff’s September 2023 hearing” (id. (citing Tr. 47-83)).

Plaintiff additionally asserts that, “[g]iven that [he] was a

younger individual age 49 as of his onset date, one cannot assume

that the VE knew he [sic] was being asked to consider an individual

closely approaching advanced age (age 50-54) as opposed to a

younger individual.” (Id.)

Plaintiff further maintains that the SSA’s Vocational Expert

Handbook “only advises that VEs prepare for the hearing by

familiarizing themselves with a claimant’s previous work” and

emphasizes the importance of “both the alleged onset date and the

date of the ALJ’s decision . . . which, for a layperson not

familiar with the law such as a VE, could be confusing as to

whether to use the claimant’s age at his alleged onset date, or age

at the time of the hearing/date of decision.” (Id. at 16 (citing

Vocational Expert Handbook, available at https://www.ssa.

gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-

508.pdf).) According to Plaintiff, a case from the District of

South Carolina supports his position (see id. (citing Jolly v.

Barnhart, 465 F. Supp. 2d 498, 504-05 (D.S.C. 2006))), in that

“[t]he [c]ourt found that, because the VE did not explicitly

consider a significant vocational factor in reaching his opinion,

[the court] was unable to find that the VE’s opinion constitute[d]

substantial evidence in support of the ALJ’s determination[,]” and

30

“[t]he matter was remanded to the ALJ for reconsideration in light

of Plaintiff’s correct age” (id. at 17 (citing Jolly, 465 F. Supp.

2d at 505); see also id. (citing Roberts v. Astrue, No. 5:12CV1308,

2013 WL 823289, at *4-5 (N.D. Ohio Mar. 6, 2013) (unpublished)).)

As a threshold matter, despite Plaintiff’s assertion in this

Court that the record remained ambiguous as to whether “the VE knew

he [sic] was being asked to consider an individual closely

approaching advanced age (age 50-54) as opposed to a younger

individual” in the hypothetical questions posed by the ALJ (Docket

Entry 10 at 14), at the hearing before the ALJ, Plaintiff failed to

question the VE regarding Plaintiff’s age classification, or how

that classification would impact Plaintiff’s ability to perform the

jobs the VE cited, notwithstanding the fact that Plaintiff took the

opportunity (through his attorney) to cross-examine the VE. (See

Tr. 80-82.) As a result, Plaintiff has forfeited, in this Court,

any challenge to the ALJ’s failure to specifically include an

individual “closely approaching advanced age” in the hypothetical

questions to the VE. See Coyier v. Saul, Civ. No. 20-1899, 2021 WL

2173425, at *2 (7th Cir. May 27, 2021) (unpublished) (holding that

the plaintiff “waived any challenge to the VE’s testimony by

failing to ask any questions to reveal shortcomings in the

job-number estimates”); Shaibi v. Berryhill, 883 F.3d 1102, 1109

(9th Cir. 2017) (“[A]t least when claimants are represented by

counsel, they must raise all issues and evidence at their

31

administrative hearings in order to preserve them on appeal.”);

Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (holding

the claimant’s failure to raise issue before ALJ “waived [the

claim] from being raised on appeal”); Bunton v. Colvin, No.

1:10CV786, 2014 WL 639618, at *5 (M.D.N.C. Feb. 18, 2014)

(unpublished) (finding waiver of issue on judicial review where the

plaintiff “failed to mount any opposition . . . to the view that he

retained the capacity to do the [jobs proffered by the VE], despite

. . . the opportunity . . . to question the VE about . . . those

positions”), recommendation adopted, slip op. (M.D.N.C. Mar. 10,

2014) (Schroeder, J); Stepinski v. Astrue, No. CA 11–183, 2012 WL

3866678, at *9–10 (D.R.I. Aug. 6, 2012) (unpublished) (“The [c]ourt

views unfavorably the silence of [the p]laintiff’s counsel at the

hearing regarding the omission about which he now complains.

Reversal and remand . . . would encourage other counsel to remain

silent in similar circumstances. This [c]ourt is disinclined to

provide such an incentive[ ] . . . [and] finds that [the p]laintiff

waived this issue by failing to raise it before the ALJ.” (internal

citations omitted)), recommendation adopted, 2012 WL 3863812

(D.R.I. Sept. 5, 2012) (unpublished); Young v. United States Comm’r

of Soc. Sec., No. CV08-0474, 2009 WL 2827945, at *13 (W.D. La.

Sept. 1, 2009) (unpublished) (“[C]laimants should not be permitted

to scan the record for implied or unexplained conflicts . . ., and

then present that conflict as reversible error, when the conflict

32

was not deemed sufficient to merit adversarial development in the

administrative hearing.”).

Even if Plaintiff had not forfeited his right to raise this

issue on judicial review, it still fails on its merits. At the

outset of the hearing, the ALJ asked Plaintiff his date of birth,

and he responded by stating his birthdate on the record. (See Tr.

49.) Thus, when the ALJ asked the VE if jobs existed for “an

individual of [Plaintiff]’s age, education [and] past job” (Tr. 77

(emphasis added)), the VE, knowing Plaintiff’s birthdate, could

perform the simple calculations involved in determining Plaintiff’s

age on his alleged onset date (49 - a “younger person” under 20

C.F.R. §§ 404.1563(c), 416.963(c)) and at the time of the hearing

(52 - a “person closely approaching advanced age” under 20 C.F.R.

§§ 404.1563(d), 416.963(d)).

That fact also distinguishes the instant case from the facts

in Jolly. In that case, the ALJ’s decision incorrectly stated

Plaintiff’s age as 9 years younger than her actual age, improperly

identified her as a “younger person” rather than a “person closely

approaching advanced age” (and nearly a person of “advanced age”)

and used the wrong Medical-Vocational Rule as a framework for

decision. Jolly, 465 F. Supp. 2d at 502-04. Moreover, at the

hearing, “the ALJ did not ask the VE to assume the claimant was any

particular age at all.” Id. at 505 (emphasis added). Thus, “the

court f[ound] that failing to consider a claimant’s age as a

33

vocational factor when the claimant is ‘closely approaching

advanced age’ [wa]s error” and “remanded to the ALJ for

reconsideration in light of [the p]laintiff’s correct age.” Id.

Other cases remanding based on Jolly also involved ALJs who failed

to include the claimant’s specific age and/or age classification in

the hypothetical question to the VE and did not provide the

claimant’s birthdate to the VE. See Jennifer S. v. Bisignano, No.

5:24CV71, 2025 WL 2388607, at *9 (W.D. Va. Aug. 15, 2025)

(unpublished) (“[The] ALJ [] did not ask [the VE] to assume a

hypothetical person who is closely approaching advanced age. In

fact, the ALJ did not ask the VE to assume [the plaintiff] was any

particular age at all. He asked the VE only to assume someone who

is the same age as [the plaintiff}. These errors might have been

harmless if the record clearly demonstrated [the VE] knew [ the

plaintiff’s birthdate] . . . .” =(emphasis added) (internal

quotation marks and citations omitted)); Roberts v. Astrue, No.

5:12CV1308, 2013 WL 823289, at *5 (N.D. Ohio Mar. 6, 2013)

(unpublished) (“The ALJ did ask the VE to consider a hypothetical

individual of the same age [as the plaintiff], yet the [c]lourt

cannot tell from the record that the VE recognized [the

plaintiff’s] recent birthday.” (emphasis added) (internal quotation

marks omitted)).

This case, by contrast, harmonizes more with Strickland v.

Berryhill, No. 7:16CV252, 2017 WL 3910436, at *11 (E.D.N.C. Aug.

34

21, 2017) (unpublished). In that case, the court found harmless

error where the ALJ failed to include age in the hypothetical

question to the VE, but the VE remained present throughout the

hearing and “the ALJ asked [the plaintiff] her date of birth,

reflective of her age, at the outset” of the hearing. Strickland,

2017 WL 3910436, at *11. The court further noted that the

plaintiff “failed to allege any harm resulting from [the] ALJ’s

failure to state [the plaintiff]’s age to the VE[,]” in that “[the

plaintiff] d[id] not contend that her age would preclude her from

performing any of the jobs identified at step five or that she

would have been entitled to a directed finding of disability under

the Medical-Vocational Guidelines.” Id. Similarly, here,

Plaintiff does not allege any particular harm arising from the

ALJ’s failure to specifically include a “person closely approaching

advanced age” as a vocational factor in the hypothetical question,

beyond making the generalized observation that, “[f]or a person

closely approaching advanced age, the regulations direct the

Commissioner to consider whether age, along with severe impairments

and limited work experience, may seriously affect the ability to

adjust to other work” (id. at 14 (citing 20 C.F.R. §§ 404.1563(d),

416.963(d)); see also Docket Entry 14 at 3-4).

Accordingly, Plaintiff’s third and final assignment of error

falls short.

35

III. CONCLUSION

Plaintiff has not established an error warranting relief.

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

May 6, 2026

36