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

> District Court, M.D. North Carolina · May 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11321815

## Case

- **Full name:** Donta L. H. v. Frank J. Bisignano, Commissioner of Social Security
- **Court:** District Court, M.D. North Carolina
- **Decided:** May 6, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11321815

## How later opinions describe it (automated extraction)

- 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
- holding the claimant’s failure to raise issue before ALJ “waived [the claim] from being raised on appeal”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11321815. Public record. Not legal advice.