Brian Pepper v. Commissioner of Social Security Administration

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1381
BRIAN PEPPER,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Cameron McGowan Currie, Senior District Judge. (6:20-cv-04159-CMC)
Argued: March 10, 2023 Decided: April 25, 2023
Before WILKINSON, HARRIS, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: George C. Piemonte, MARTIN, JONES & PIEMONTE, Charlotte, North
Carolina, for Appellant. William Feldman, SOCIAL SECURITY ADMINISTRATION,
Baltimore, Maryland, for Appellee. ON BRIEF: Michel Phillips, MARTIN, JONES &
PIEMONTE, Charlotte, North Carolina, for Appellant. Brian C. O’Donnell, Regional
Chief Counsel, Katie M. Gaughan, Supervisory Attorney, Office of the General Counsel,
M. Jared Littman, Special Assistant United States Attorney, SOCIAL SECURITY
ADMINSTRATION, Philadelphia, Pennsylvania; Corey F. Ellis, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This appeal arises from Brian Pepper’s application for supplemental security
income benefits under the Social Security Act. See 42 U.S.C. §§ 1381–1383f. According
to Pepper, he became unable to work in 2017, at the age of 27, due primarily to his Crohn’s
disease, depression, and anxiety. Following a hearing, an ALJ disagreed, and after
exhausting his administrative appeals, Pepper took his case to federal district court. The
district court affirmed the denial of benefits, and for the reasons given below, we now
affirm the judgment of the district court.
We review the ALJ’s disability determination pursuant to 42 U.S.C. § 405(g) and
must uphold that determination if the ALJ “applied correct legal standards” and if the
“factual findings are supported by substantial evidence.” Dowling v. Comm’r. of Soc. Sec.
Admin., 986 F.3d 377, 382–83 (4th Cir. 2021) (internal quotation marks omitted). Our
review for substantial evidence does not permit us to “reweigh conflicting evidence, make
credibility determinations, or substitute our judgment for that of the ALJ.” Shinaberry v.
Saul, 952 F.3d 113, 123 (4th Cir. 2020) (cleaned up). Instead, if there is conflicting
evidence as to disability, “we defer to the ALJ’s decision.” Id.
At issue in this case is the ALJ’s assessment of Pepper’s “residual functional
capacity,” or “RFC” – “the most [the] claimant can still do despite all of [his] medically
determinable impairments.” Woods v. Berryhill, 888 F.3d 686, 689 (4th Cir. 2018)
(internal quotation marks omitted). The RFC is a key part of the five-step process by which
an ALJ determines disability. Only if the ALJ finds that the claimant, in light of his RFC,

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cannot perform jobs available in the national economy will the claimant qualify for
disability benefits. See id. 1
Here, the ALJ found that Pepper had four medically determinable impairments
severe enough to limit his job performance: anxiety disorder; depression; obesity; and
Crohn’s disease, a chronic inflammatory bowel condition. See Pledger v. Lynch, 5 F.4th
511, 514 (4th Cir. 2021) (describing Crohn’s disease). As for obesity and Crohn’s disease,
the ALJ determined, Pepper’s physical examinations remained largely normal and
“demonstrated that he retained a high degree of functioning physically.” A.R. 21. Pepper’s
Crohn’s disease was well-controlled by medication; his gastroenterology records showed
“only normal findings,” and his symptoms – primarily diarrhea – were relatively mild.
A.R. 24. Pepper’s depression and anxiety also responded to medication, the ALJ found,
and his mental status examinations had yielded “grossly normal” results indicating a “high
degree of functioning mentally.” A.R. 22. Indeed, the ALJ noted, Pepper’s treating
physician, Dr. Suresh Khandekar, opined that “getting a job will help [Pepper]
psychologically.” A.R. 24.
1 The full five-step process, established by Social Security Administration
regulation and applied by the ALJ here, is as follows: “[T]he ALJ asks at step one whether
the claimant has been working; at step two, whether the claimant’s medical impairments
meet the regulations’ severity and duration requirements; at step three, whether the medical
impairments meet or equal an impairment listed in the regulations; at step four, whether
the claimant can perform [his] past work given the limitations caused by [his] medical
impairments; and at step five, whether the claimant can perform other work.” Mascio v.
Colvin, 780 F.3d 632, 634 (4th Cir. 2015); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The RFC assessment is undertaken after step three and before an ALJ considers steps four
and five. See Mascio, 780 F.3d at 635.

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Based on this analysis, the ALJ found that Pepper had the residual functional
capacity to:
perform light work as defined in 20 CFR 416.967(b) except the claimant can
frequently climb, balance, stoop, kneel, crouch, and crawl. He can have
frequent exposure to workplace hazards. He is limited to simple, routine
tasks performed two-hours at a time, but no fast-paced production rate work.
He can have occasional interaction with the public and coworkers. He will
be off task less than 10% of the workday in addition to regularly scheduled
breaks.
A.R. 19. The ALJ then concluded – here relying on the testimony of a vocational expert –
that despite these limitations, a significant number of jobs would be available to Pepper in
the national economy. Accordingly, the ALJ found Pepper not disabled and denied his
application for benefits.
On appeal, Pepper argues primarily that the ALJ improperly rejected the opinion of
his treating physician, Dr. Khandekar, as to the extent of his Crohn’s disease-related
limitations. But the record is to the contrary: The ALJ found “Khandekar’s opinion []
persuasive,” A.R. 24, and incorporated limitations substantially aligned with that opinion
into Pepper’s RFC. Pepper focuses on his need for unscheduled bathroom breaks to
manage his diarrhea, and on Khandekar’s view that he “may need” such breaks “2–3 times
at the most” during an eight-hour workday, for an average of “15 min[utes]” each.
A.R. 720. But as the ALJ explained, the RFC accounts for such a requirement, allowing
for a “time off task limitation” of up to 10 percent of an eight-hour workday (or roughly
48 minutes) for “pain and bathroom breaks.” A.R. 24. It was only “greater limitations” –
that is, bathroom-related accommodations going beyond those identified by Dr. Khandekar
– that the ALJ viewed as “inconsistent with longitudinal evidence and findings.” Id.

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(emphasis added). In short, the factual premise of Pepper’s claim – that the ALJ refused
to credit Dr. Khandekar’s opinion as to bathroom breaks – is simply mistaken.
Nor are we persuaded by Pepper’s related claim that the ALJ failed to properly
evaluate the opinion of Dr. Khandekar under revised agency regulations. As the district
court explained, the ALJ applied the correct legal standard to the medical opinion of
Pepper’s treating physician, giving it no special deference or specific evidentiary weight
and instead focusing on its supportability and its consistency with other record evidence.
See 20 C.F.R. § 416.920c. Like the district court, we find that the ALJ’s assessment under
this standard is supported by substantial evidence, giving us no basis for disturbing it.
Finally, Pepper takes issue with the ALJ’s determination that he remains able to
work despite his mental impairments. There is no dispute that Pepper’s impairments are
serious: As the ALJ recognized, Pepper has been diagnosed with severe depression and
has reported past suicide attempts. But the ALJ carefully considered Pepper’s entire
medical record, including his responsiveness to medication, multiple expert reports finding
that he maintains a high degree of mental functioning and the capacity to work, and his
own treating physician’s assessment that working will “help him psychologically.”
A.R. 721. The ALJ also incorporated into Pepper’s RFC significant limitations addressing
his mental condition, restricting him to simple and routine tasks performed without time
pressure and to only occasional interaction with the public and coworkers.2 Although
2 For the first time on appeal, Pepper takes issue with one of those limitations,
arguing that the prohibition on “fast-paced production rate work,” A.R. 19, is too vague.
We generally will not consider an argument that was not preserved in the district court.
See In re Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). And while we may depart from

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Pepper would have us weigh the evidence differently, it is not our job to second-guess the
ALJ’s considered decision. See Shinaberry, 952 F.3d at 123. Because substantial evidence
supports the ALJ’s determination that Pepper’s impairments do not warrant a still more
limited RFC, we defer to the ALJ. Id.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
that rule in “exceptional circumstances” to correct a manifest and fundamental error, see
id., this is not such a case: While we have required additional explanation for some
restrictions aimed at similar concerns, see, e.g., Thomas v. Berryhill, 916 F.3d 307, 312
(4th Cir. 2019) (remanding for elaboration on prohibition of “production rate or demand
pace” work), we note that this one is clearer – specifying that the target is “fast-paced”
work – and that the ALJ further elaborated at the hearing, explaining to the vocational
expert that what was precluded was “fast assembly line work,” A.R. 51. Under these
circumstances, applying our usual forfeiture bar works no injustice. See In re Under Seal,
749 F.3d at 285.

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