George L. v. Bisignano

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GEORGE L., 	:
Plaintiff, 	:
:
v. 	: 	C.A. No. 25-188-PAS
:
FRANK BISIGNANO, 	:
Commissioner of the Social Security 	:
Administration, 	:
Defendant. 	:
MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
On February 26, 2020, Plaintiff George L., a “younger” individual, filed his third set1 of
applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits
(“DIB”) under the Social Security Act. Plaintiff alleges disability beginning on January 15,
2020, based on neuropathy, diabetes, knee pain and drop foot. Tr. 91. Plaintiff’s date-last-
insured is March 31, 2026.
An administrative law judge (“ALJ”) reopened Plaintiff’s second set of applications and,
in addition to the impairments alleged by Plaintiff, recognized borderline intellectual functioning
and depressive/anxiety disorders as severe. Tr. 21. Weighing the evidence of record, including
administrative findings of six non-examining expert physicians/psychologists, the reports of
three consulting examiners (two psychologists and an advanced practice registered nurse) and an
RFC 2 opinion from the treating physician assistant, P.A. Rachael Maina, the ALJ found that
1 Plaintiff’s first application (SSI only) was denied at the initial phase in October 2018. His second set of
applications (SSI and DIB) was denied at the initial phase in May 2022. Tr. 18. The second set was reopened by
the ALJ. Id.
2 RFC refers to “residual functional capacity.” It is “the most you can still do despite your limitations,” taking into
account “[y]our impairment(s), and any related symptoms, such as pain, [that] may cause physical and mental
limitations that affect what you can do in a work setting.” 20 C.F.R. §§ 404.1545(a)(1), 416.945.
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Plaintiff retained the physical RFC to perform light work reduced to four stand/walk hours with
postural limits, as well as the mental RFC to do simple work (“simple tasks and instructions”),
with occasional social interaction, simple changes in a routine work setting and a low stimulus
environment working primarily with objects. Tr. 23-28. Based on this RFC and the testimony of
a vocational expert (“VE”), the ALJ found that Plaintiff can perform three exemplar jobs. Tr.
29-30. Although the ALJ did not find Plaintiff limited to jobs that afford a sit/stand option, the
decision notes that all three exemplar jobs permit the work to be performed sitting or standing at
will. Tr. 30 & n.1.
Plaintiff challenges the ALJ’s decision for four reasons. First, Plaintiff argues that the
ALJ erred in how he weighed the mental health opinions and prior administrative findings, as
well as the treating source opinion of P.A. Maina. Second, Plaintiff challenges the ALJ’s Step
Five determinations. Third, Plaintiff contends that the ALJ did not mention his subjective
testimony about the side effects of medications. Fourth, Plaintiff argues that the ALJ erred in his
approach to the claim of excessive absence/off-task time. Plaintiff has moved to reverse the
decision of the Commissioner and to remand the case for further proceedings. ECF No. 11.
Defendant has filed a counter motion for an order affirming the Commissioner’s decision. ECF
No. 12. Both motions are before me on consent pursuant to 28 U.S.C. § 636(c).
I. 	Background
Plaintiff received special education, has dyslexia, did not complete high school, did not
earn a GED, lives with family members or his girl friend and has been homeless in the past. Tr.
54, 57, 363, 366, 534. For several years during his twenties, he was married; he has three
children. Tr. 364, 534. For many years, until 2020 or early 2021, he had fairly consistent
employment principally as an automobile detailer, which he learned to do on the job, task-by-
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task, with each task taking one and a half to two weeks to learn. Tr. 45-46, 256-57, 534. This
job required bending/stooping, squatting and kneeling; it is undisputed that his RFC precludes
him from doing this past work. Tr. 28, 47. During the ALJ hearing, Plaintiff claimed that he
cannot work because of difficulty with his legs, which cramp, sting and give out, and with sitting
for a long time without moving around. Tr. 47-48. He also mentioned that prescribed
medication has “some” impact on memory and causes stomach issues if he does not eat after he
takes it and sometimes even if he does. Tr. 49.
Medically, Plaintiff has long been diagnosed with type 2 diabetes. Tr. 394. He began
treatment for diabetes and related neuropathy at Ocean State Health in February 2021. Id.
During the first appointment at Ocean State, Plaintiff reported an injury on the job that caused
back and leg pain. Id. Providers prescribed medication for diabetes, radiculopathy and muscle
spasm and referred Plaintiff to physical therapy. E.g., Tr. 410. By May 13, 2021, the physical
therapist’s notes reflect that Plaintiff was discharged based on “significant improvement,” with
minimal knee pain, no hip/back pain and no limits on bending or the ability to stand/walk up to
one hour, with mild discomfort after thirty minutes. Tr. 460-63. This provider noted Plaintiff’s
statement that he was “[h]oping to return to work following next MD appointment.” Tr. 460.
The Ocean State treating notes include observations of clear speech and logical goal directed
thoughts. E.g., Tr. 398. They do not reference any observation of mental or cognitive
impairment. The Ocean State records end in July 2021. Tr. 373-459.
At three appointments in January, February and May 2022, Plaintiff was examined by a
neurologist, Dr. Keith Brecher, as well as by Dr. Gary L’Europa who performed nerve
conduction studies. Tr. 523-26, 531-33, 598. Plaintiff was found to have weakness in one leg
muscle and was diagnosed with generalized symmetrical neuropathy caused by diabetes. Tr.
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524, 531. While Plaintiff’s gait was unremarkable, Dr. Brecher’s notes reflect concern about the
atypicality of Plaintiff’s complaints; this caused Dr. Brecher to send Plaintiff for testing for
multiple sclerosis (“MS”) and to suggest that Plaintiff use an ankle brace as treatment for
possible MS. Tr. 598. P.A. Maina noted in July 2022 that Plaintiff was told he did not have MS.
Tr. 602.
On March 9, 2022, Plaintiff began treatment at Village Medical with P.A. Maina. Tr.
608, 720. Plaintiff told her that his legs “will give out” and asked for an out-of-work letter.3 Tr.
608, 610. On examination, P.A. Maina observed that Plaintiff “ambulat[ed] normally” and
continued medications for diabetes/neuropathy. Id. Her mental health observations are all
normal, nor do her notes contain any observation of cognitive impairment. Id. On June 27,
2022, P.A. Maina noted Plaintiff’s report that he had been wearing the brace, which had been
helpful, observed that Plaintiff was ambulating normally and recommended exercise. Tr. 604,
606. At appointments in July and December 2022 and March and May 2023,4 she continued to
prescribe medication for diabetes and neuropathy and to observe normal ambulation and no
mental health concerns. Tr. 600-03, 643, 648-51, 678, 742-53. In August 2023, Plaintiff
complained of a spasm in his leg, and asked for a “letter for [an] update to [the] court.” Tr. 736,
739. The last encounter of record with P.A. Maina is on December 7, 2023, when she again
noted that he was wearing the brace, but had normal gait, normal muscle strength and tone,
normal movement in all extremities with unremarkable bloodwork and no mental health
concerns. Tr. 727, 730-31.
3 In July 2022, she signed a letter opining that he cannot return to his previous job “due to neuropathy.” Tr. 685.
4 In July 2022, P.A. Maina noted Plaintiff’s symptoms following a hospitalization for encephalitis. This serious but
passing infectious disease is not in issue in connection with Plaintiff’s disability applications.
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At the December 2023 encounter, Plaintiff told P.A. Maina that he had an appointment in
connection with his Social Security applications. Tr. 731. He asked her for another letter stating
that he cannot work at his previous occupation due to neuropathy. Id. P.A. Maina noted her
concern that Plaintiff had not tried to look for work recently and had not applied for jobs outside
of his previous career field. Id. In response to his request for a letter, she explained her opinion:
I will write letter one last time for the next 3 months but he needs to look for work
as I believe can find something that is not labor intensive or requiring extra
education to do.
Id. Eleven days later, P.A. Maina signed the RFC opinion described below.
II. 	Standard of Review
As long as the correct legal standard is applied, “[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. §§ 405(g), 1383(c)(3); see Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).
“[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary
sufficiency is not high.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). Substantial evidence
“means – and means only – ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). It is more than a scintilla and must do more than merely create a suspicion of
the existence of a fact. Irlanda Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765, 769 (1st
Cir. 1991) (per curiam). Further, while “more than a scintilla of evidence is required to meet the
benchmark, a preponderance of evidence is not.” Clark v. Kijakazi, 673 F. Supp. 3d 119, 122
(D.N.H. 2023) (cleaned up). The determination of substantiality is based on an evaluation of the
record as a whole. Frustaglia v. Sec’y of Health & Hum. Servs., 829 F.2d 192, 195 (1st Cir.
1987) (per curiam); Brown v. Apfel, 71 F. Supp. 2d 28, 30 (D.R.I. 1999), aff’d, 230 F.3d 1347
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(1st Cir. 2000) (per curiam); see Parker v. Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986) (per
curiam) (court must consider evidence detracting from evidence on which Commissioner relied).
Once the Court concludes that the decision is supported by substantial evidence, the
Commissioner must be affirmed, even if the Court would have reached a contrary result as finder
of fact. Rodriguez Pagan v. Sec’y of Health & Hum. Servs., 819 F.2d 1, 3 (1st Cir. 1987) (per
curiam); Lizotte v. Sec’y of Health & Hum. Servs., 654 F.2d 127, 128 (1st Cir. 1981). The
Court’s role in reviewing the Commissioner’s decision is limited. Brown, 71 F. Supp. 2d at 30.
The Court does not reinterpret or reweigh the evidence or otherwise substitute its own judgment
for that of the Commissioner. Thomas P. v. Kijakazi, C.A. No. 21-00020-WES, 2022 WL
92651, at *8 (D.R.I. Jan. 10, 2022), adopted by text order (D.R.I. Mar. 31, 2022). If the Court
finds either that the Commissioner’s decision is not supported by substantial evidence, or that the
Commissioner incorrectly applied the law relevant to the disability claim, the Court may remand
a case to the Commissioner for a rehearing under Sentence Four of 42 U.S.C. § 405(g). Allen v.
Colvin, C.A. No. 13-781L, 2015 WL 906000, at *8 (D.R.I. Mar. 3, 2015).
III. 	Disability Determination
The law defines disability as the inability to do 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
twelve months. 42 U.S.C. § 416(i); 20 C.F.R. § 404.1505.5 The impairment must be severe,
making the claimant unable to do previous work, or any other substantial gainful activity which
exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-06, 1509-11.
5 The Social Security Administration has promulgated identical sets of regulations governing eligibility for DIB and
SSI. See McDonald v. Sec’y of Health & Hum. Servs., 795 F.2d 1118, 1120 n.1 (1st Cir. 1986). For simplicity, I
cite only to one set.
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A. 	The Five-Step Evaluation
The ALJ must follow five steps in evaluating a claim of disability. See 20 C.F.R. §
404.1520. First, if a claimant is working at a substantial gainful activity, the claimant is not
disabled. Second, if a claimant does not have any impairment or combination of impairments
that significantly limit physical or mental ability to do basic work activities, then the claimant
does not have a severe impairment and is not disabled. Third, if a claimant’s impairments meet
or equal an impairment listed in 20 C.F.R. Part 404, Appendix 1, the claimant is disabled.
Fourth, if a claimant’s impairments do not prevent doing past relevant work, the claimant is not
disabled. Fifth, if a claimant’s impairments (considering RFC, age, education and past work)
prevent doing other work that exists in the local or national economy, a finding of disabled is
warranted. The claimant bears the burden of proof at Steps One through Four, but the
Commissioner bears the burden at Step Five. Sacilowski v. Saul, 959 F.3d 431, 433, 440-41 (1st
Cir. 2020); see Ulitsch v. U.S. Soc. Sec. Admin., Case No. 24-cv-00074-PB, 2025 WL 691054,
at *4 (D.N.H. Mar. 4, 2025) (“claimant bears the burden at the first four steps to prove by a
preponderance of the evidence that they are disabled”).
B. 	Opinion Evidence
An ALJ must consider the persuasiveness of all medical opinions in a claimant’s case
record. See 20 C.F.R. § 404.1520c. The most important factors to be considered when the
Commissioner evaluates the persuasiveness of a medical opinion are supportability and
consistency; these are usually the only factors the ALJ is required to articulate. 20 C.F.R. §
404.1520c(b)(2); Elizabeth V. v. O’Malley, C.A. No. 23-00459-WES, 2024 WL 1460354, at *3
(D.R.I. Apr. 4, 2024), adopted by text order (D.R.I. Apr. 19, 2024). Supportability refers to the
quantum of relevant objective medical evidence and supporting explanations presented by a
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medical source to support the medical opinion or prior administrative medical findings;
consistency refers to the degree to which a medical opinion or prior administrative medical
finding is consistent with the evidence from other medical sources and nonmedical sources in the
claim. 20 C.F.R. § 404.1520c(c)(1)-(2). A medical opinion lacking adequate supporting
evidence, or one that is inconsistent with evidence from other sources, is not persuasive
regardless of who made the medical opinion. See Amanda B. v. Kijakazi, C.A. No. 21-
308MSM, 2022 WL 3025752, at *2 (D.R.I. Aug. 1, 2022), adopted, 2022 WL 18910865 (D.R.I.
Nov. 7, 2022).
In considering whether, and to what extent, to rely on medical/expert opinions, the ALJ
may pick and choose among portions of them, finding parts persuasive and other parts less so.
Samantha B. v. Bisignano, C.A. No. 25-00004MSM, 2025 WL 2992378, at *6 (D.R.I. Oct. 24,
2025). If an ALJ weighs differing medical opinions and favors aspects of some over others,
there is no error as long as the reasons for these conclusions are adequately supported by the
record. Edwin L. v. Kijakazi, No. 21-00359-MSM, 2022 WL 2229509, at *6 (D.R.I. Apr. 25,
2022), adopted, 2022 WL 2212690 (D.R.I. June 21, 2022) (court cannot second-guess ALJ’s
exercise of discretion to make conclusions about which medical opinions to rely on as long as
conclusions are supported by substantial evidence).
IV. 	Analysis
A. 	ALJ’s Approach to Opinions and Findings of Experts and Treating
Providers
Plaintiff has challenged the ALJ’s weighing of the opinions/findings of the mental health
experts and P.A. Maina. These opinions/findings, including their similarities and
inconsistencies, which the ALJ resolved, may be briefly summarized.
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From the prior reopened application, consulting psychologist Dr. Alex Turchetta noted
Plaintiff’s report of prior diagnoses of depression/anxiety and panic disorder and found “severe
emotional distress” impacting his ability to relate to others and to respond to work pressures, but
also found Plaintiff capable of understanding and following directions and instructions with
“cognitive skills . . . in the low average range.” Tr. 534-36. Also from the prior reopened
application, based on a file review, the non-examining expert psychologist Dr. Jeffrey Hughes
found no significant limits in the abilities to remember and understand short and simple
instructions and sustain an ordinary work routine without special supervision, but the inability to
perform tasks that involve frequent interaction with customers or coworkers, as well as that,
despite moderately limited ability to maintain attendance and be punctual, Plaintiff retains the
ability to perform simple tasks “over the course of a normal 8/5/40 work routine.” Tr. 77-78, 87-
88.
For the current application, a consulting examiner, psychologist Dr. John Parsons,
observed appropriate attention/concentration, normal recall, intelligible speech with a
cooperative though defensive rapport. Tr. 361-62. Although he noted moderate
depression/anxiety, Dr. Parsons did not adopt Dr. Turchetta’s diagnoses of depression and
anxiety. Tr. 366, 370. Instead, based on testing, he diagnosed borderline intellectual
functioning, with mild-to-moderate limits in the ability to understand, remember and follow
instructions, moderate concentration and social limits, but moderate-to-marked limits in the
ability to adapt. Tr. 368. Also for the current application, based on Plaintiff’s IQ scores in the
low average/borderline range, his ability to sustain work in the past, his pain, low energy and
social avoidance, the two non-examining psychiatric experts (psychiatrist Dr. Susan Killenberg
and psychologist Dr. Marsha Hahn) found that Plaintiff can perform work that requires
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understanding and remembering simple tasks involving 1-3 step instructions for two hour periods
over an eight hour day/forty hour week at a standard work pace in a low stimulus setting and
limited social interaction, with the ability to respond appropriately to supervision. Tr. 110-11,
124-26. Unlike Dr. Parsons (whose report these experts reviewed), they found moderate (not
marked) adaptation limits. Tr. 95, 121. Unlike Dr. Turchetta, Dr. Hughes and Dr. Parsons, both
noted that Plaintiff “may” require supervision while learning a task but can progress to
performing simple tasks without special supervision. Tr. 111, 125.
The final opinion in issue is that of P.A. Maina, signed eleven days after she advised
Plaintiff of her treating opinion that he can work at jobs less arduous than his previous
occupation. Tr. 720-23. Based on diabetes and neuropathy causing lower extremity burning and
tingling and the limp with walking, she opined that he can occasionally lift up to twenty pounds,
can stand/walk for no more than a total of two hours, can sit for up to six hours and needs a
sit/stand option.6 Tr. 721-22. With respect to the stand/walk limit, P.A. Maina’s opinion clashes
with the unchallenged RFC opinions of the non-examining physician experts (which the ALJ
found to be persuasive) that Plaintiff can stand/walk for up to four hours. P.A. Maina also
opined that Plaintiff can handle the stress of normal work and did not check off any of the boxes
to indicate that he would be off-task or absent from work. Tr. 723. Nevertheless, due to pain,
she opined that Plaintiff would need “1-2” unscheduled breaks of fifteen to thirty minutes each.
Tr. 721. This aspect of P.A. Maina’s opinion – unscheduled breaks – clashes with the non-
examining psychiatrist/psychologists; all three opined that, despite pain and related symptoms,
6 As to the sit/stand option, while the ALJ rejected this as an RFC limitation in reliance on the non-examining
physician experts, he relied only on jobs that would permit such an option. Thus, if the rejection of this limit were
based on error (which I do not find), it would not be material to the outcome of the claim.
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Plaintiff can sustain a normal work schedule. P.A. Maina opined that emotional problems do not
contribute to the severity of Plaintiff’s limitations. Tr. 720.
The ALJ appropriately weighed all of these opinions. He found all three non-examining
mental health opinions persuasive, except for his rejection of the finding by two of them that
Plaintiff “may” require supervision (which these experts opined he can accept) while learning
new tasks although he can progress to simple tasks without special supervision.7 The ALJ based
this conclusion on Dr. Parsons’ findings, including the lack of indication of the need for
additional supervision to learn tasks and the observation that Plaintiff has only mild-to-moderate
limits in the ability to understand, remember and follow instructions. Tr. 27. The ALJ found
unpersuasive P.A. Maina’s opinion to the extent that she opined that Plaintiff would need one to
two unscheduled breaks, can stand/walk only for a total of two hours and needs to sit/stand at
will. Tr. 27. As reasons, the ALJ relied on the inconsistency between these findings and the
balance of the evidence, including Plaintiff’s modest findings on examination and the lack of any
record evidence to support the need for unscheduled breaks and a sit/stand option; the ALJ
focused particularly on P.A. Maina’s own observations of normal muscle strength/tone, normal
movement of joints, and normal gait at the encounter immediately prior to the date on her RFC
opinion. Tr. 27. As to the consulting examination results, the ALJ found the Parsons report
persuasive except that he rejected the finding that adaptive limits may be marked (rather than just
moderate) based on Plaintiff’s consistently cooperative behavior with providers, his lack of the
need for emergency or psychiatric admissions and his lack of current psychiatric treatment. Tr.
28. The ALJ found the Turchetta report not persuasive based on its inconsistency with the many
7 The ALJ also found unpersuasive the prior application mental health expert’s opinion of only mild adaptive
limitations. The ALJ found Plaintiff to be more limited in that he found moderate adaptive limits in reliance on the
mental health experts for the current application.
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positive findings on examination and lack of ongoing mental health treatment and of any treating
source documentation of signs or findings consistent with it. Id.
Plaintiff’s challenge to the ALJ’s approach to this opinion evidence is focused on four
allegations of error: first, Plaintiff asks the Court to find error in the ALJ’s rejection of the
current phase psychiatric non-examining experts finding that Plaintiff “may” need supervision
while learning new skills; second, Plaintiff asks the Court to find error in the ALJ’s rejection of
the finding of Dr. Parsons (the consulting examiner) of moderate-to-marked limits in the ability
to adapt (only to the extent that this finding tips to marked); third, Plaintiff asks the Court to find
error in the ALJ’s rejection of the Turchetta finding of “severely impacted” social capacity and
ability to sustain work pressure; and four, Plaintiff asks the Court to find error in the ALJ’s
rejection of P.A. Maina’s opinions that Plaintiff’s pain would result in the need for unscheduled
breaks, a two-hour limit on stand/walk and the need to sit/stand at will.
The problem with all of these arguments is that, as to each, as noted above, each of the
ALJ’s conclusions is supported by substantial evidence that he marshaled to make each
challenged finding. By way of just two examples, the ALJ’s rejection of the non-examining
finding of two mental health experts that Plaintiff “may” need supervision while learning new
tasks is contradicted by the observation of Dr. Parsons on examination that Plaintiff was able to
understand and follow instructions, while the ALJ appropriately based the rejection of the more
extreme findings in the Maina opinion on her own examination findings over the extended
course of treatment-based appointments. Notably, in contrast to her opinion, which purports to
be based on the observation of “limping,” P.A. Maina’s examination results consistently include
the observation of normal ambulation and/or normal gait, with the occasional notation that
Plaintiff was using the ankle brace. Further, P.A. Maina’s opinion about unscheduled breaks is
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contradicted by the findings (which the ALJ found to be persuasive) of the non-examining
experts that Plaintiff can sustain a normal work routine despite pain, low energy and sleep issues,
among other symptoms. Nor did the ALJ err by ignoring Plaintiff’s pain – indeed, the persuasive
findings of the non-examining experts on which he relied expressly took Plaintiff’s subjective
pain into consideration.
Having reviewed the entirety of this record, the Court finds that a reasonable mind could
accept it as adequate to support the ALJ’s conclusions. Nor does the Court find that the ALJ’s
conclusions are tainted by cherry-picking, by an improper untutored lay assessment of complex
medical findings or by the failure to marshal substantial evidence to support each one. Based on
the foregoing, the Court finds no error in the ALJ’s weighing of the opinion evidence.
B. 	ALJ’s Step-Five Determinations
Plaintiff challenges the ALJ’s Step Five determinations for three reasons.
First, Plaintiff contends that the ALJ erred in relying on the VE’s testimony that
Plaintiff’s RFC permits him to perform three exemplar jobs. With no explanation for his failure
to raise the issue during the hearing while the VE was testifying, Plaintiff argues that these three
jobs are classified as GED reasoning level 2 and 3, which Plaintiff contends is per se inconsistent
with the inability to do more than simple work; to support this per se argument, Plaintiff relies on
now-rejected cases from the District of Maine and ignores this Court repeated rejection of the
precise same argument.
There are many flaws, each fatal, with this argument. First, Plaintiff’s brief appears to be
a cut-and-paste from another case in that it refers to exemplar jobs from some other case – not to
those regarding which the VE in this case testified and on which the ALJ in this case relied.
Further, the Court’s review of the Dictionary of Occupational Titles reveals that none of the jobs
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the ALJ actually relied on are GED reasoning level 3 and one of them is GED reasoning level 1.
See U.S. Dep’t of Labor, Dictionary of Occupational Titles, App. C (4th ed. 1991). Accordingly,
the factual premise of the GED argument is simply wrong. Second, Plaintiff has waived this
argument by failing to question the VE at the hearing.8 See, e.g., Joseph D. v. Bisignano, C.A.
No. 25-00127-AEM, 2025 WL 3470305, at *7 (D.R.I. Dec. 3, 2025); Gianna S. v. Bisignano,
C.A. No. 25-100-PAS, 2025 WL 3443475, at *4 & n.8 (D.R.I. Dec. 1, 2025) (citing cases).
Third, this Court has repeatedly rejected the per se rule on which Plaintiff relies. See, e.g.,
Joseph D., 2025 WL 3470305, at *7 (“Court has repeatedly held that a claimant like Joseph who
is limited to simple, repetitive tasks may perform jobs requiring GED reasoning levels of two or
three”); Gianna S., 2025 WL 3443475, at *4 (“case law is clear (both in this District and
elsewhere) that jobs with a GED reasoning level of 2 or 3 are consistent with an RFC limitation
to simple and unskilled tasks”); Christine L. v. Colvin, C.A. No. 24-00145-LDA, 2024 WL
5118440, at *7 (D.R.I. Dec. 16, 2024) (same); Steven A. v. O’Malley, C.A. No. 23-544-WES,
2024 WL 4344865, at *7-8 (D.R.I. Sept. 30, 2024) (same), adopted by text order (D.R.I. Oct. 18,
2024); William S. v. O’Malley, C.A. No. 24-00143-LDA, 2024 WL 4123488, at *7 (D.R.I. Sept.
9, 2024) (same); Su Y. v. O’Malley, C.A. No. 23-CV-541-JJM-PAS, 2024 WL 3385200, at *3
(July 11, 2024) (same); Ryan Y. v. O’Malley, C.A. No. 23-540-PAS, 2024 WL 3329755, at *8
(D.R.I. July 8, 2024) (same). Plaintiff has also ignored a strongly worded and repeated caution
that a repeat of this argument without citation to the growing body of adverse authority could be
8 Unlike some of the other cases in which Plaintiff’s counsel’s GED argument has been rejected, e.g., Gianna S.,
2025 WL 3443475, at *3 (claimant is high school graduate with no diagnosed cognitive impairments), Plaintiff here
did not graduate from high school and has low average to borderline intellectual functioning. Thus, one might
speculate that questioning the VE about the exemplar jobs could have exposed an inconsistency between the job
requirements and Plaintiff’s intellectual capacity, although that seems unlikely in light of the low GED requirements
of the jobs on which the ALJ actually relied. What matters, however, is that Plaintiff did not take the opportunity
that he was afforded to do this during the hearing. Tr. 69. Therefore, the argument is forfeited.
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sanctionable. Emily C. v. Dudek, C.A. No. 24-00324-LDA, 2025 WL 1263715, at *6 & n.1
(D.R.I. May 1, 2025); see Gianna S., 2025 WL 3443475, at *4 n.8. The Court reiterates that
caution here.
Plaintiff’s other two Step-Five challenges – to the source of the job numbers (“US Bureau
of Labor Statistics and SkillTRAN Job Browser,” Tr. 69) and to the number (19,000) of jobs as
per se insufficient to support the ALJ’s finding of a significant number of available jobs – are
equally unavailing.
As to the former argument, the Commissioner correctly relies on Plaintiff’s forfeiture of
the argument by his failure to raise the issue by questioning the VE during the ALJ hearing. Jose
M. v. O’Malley, C.A. No. 23-319MSM, 2024 WL 3886749, at *5 (D.R.I. Aug. 20, 2024),
adopted, 2024 WL 4063770 (D.R.I. Sept. 5, 2024). That is, unless inconsistency is exposed by
questions posed to the VE, there is no per se error in reliance on Bureau of Labor statistics and
SkillTran for the number of available jobs. See Purdy, 887 F.3d at 17 (affirming ALJ’s reliance
on number of jobs that VE derived from his expertise using Bureau of Labor statistics and
SkillTran).
As to the latter argument, the Commissioner cites to cases holding that the ALJ’s
common sense, Cabreja v. Astrue, C.A. No. 11-130-ML, 2012 WL 272746, at *5 (D.R.I. Jan. 27,
2012), permits the available work finding to be based on as few as 10,000 jobs. See, e.g.,
Deannie B. v. Kijakazi, No. 1:22-cv-00067-JAW, 2023 WL 839828, at *2 (D. Me. Jan. 27, 2023)
(“11,752 positions available in the national economy . . . is sufficient to meet the
Commissioner’s Step 5 burden”), adopted, 2023 WL 2019089 (D. Me. Feb. 15, 2023); Brownell
v. Berryhill, Civil Action No. 17-11462-FDS, 2018 WL 3150222, at *14 (D. Mass. June 27,
2018) (12,000 national jobs sufficient); Vining v. Astrue, 720 F. Supp. 2d 126, 137 (D. Me.
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2010) (collecting cases, finding numbers “in the ballpark of 10,000 to 11,000 nationwide”
sufficient). The Court finds these cases to be persuasive and adopts their reasoning to reject
Plaintiff’s challenge to the ALJ’s finding that the number of exemplar jobs is adequate to support
the conclusion that work Plaintiff can do is sufficiently available in the national economy.
C. 	ALJ Failed to Consider Side Effects of Medication
Plaintiff argues that the ALJ erred by failing even to mention in his decision the side
effects that Plaintiff claims (in subjective testimony and in the function report) are caused by his
medications – forgetfulness and stomach issues. The argument fails because the premise is
inaccurate: far from failing to mention these statements, the ALJ expressly mentioned and
considered Plaintiff’s subjective claim that medication “messes with his memory and causes
stomach issues.” Tr. 23. There is also no error because the ALJ appropriately juxtaposed
Plaintiff’s subjective claims including this one with the many treating records noting, for
example, no acute distress, Plaintiff’s healthy appearance and his denial of nausea and vomiting,
Tr. 24-25. And, as to the symptom of forgetfulness, the argument also fails because Plaintiff’s
memory limits were considered by the consulting and non-examining mental health experts on
whom the ALJ relied for the RFC. The lack of error is cinched by the ALJ’s reliance on the
form filled in by Plaintiff’s treating provider, P.A. Maina – it asked her to opine on medication
side effects and she did not list any. Tr. 723. And if the ALJ had failed to mention this
testimony (which he did not), the failure to explicitly address such a medication side effect
mentioned only in unsupported subjective testimony during the hearing and in the function report
does not require remand. Thomas L. v. O’Malley, C.A. No. 24-00195-WES, 2024 WL 4948805,
at *8 (D.R.I. Dec. 3, 2024) (unsupported subjective allegations at ALJ hearing and in one of
function reports did not require ALJ to explicitly address alleged medication side effects in the
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decision), adopted by text order (D.R.I. Jan. 27, 2025). For each of these reasons, this argument
is rejected.
D. 	ALJ’s Approach to Plaintiff’s Ability to Complete Normal
Workday/Workweek
Plaintiff argues that the ALJ erred in failing to marshal substantial evidence in support of
his finding that Plaintiff can sustain work at a normal/routine pace without excessive absence or
off-task time. The argument fails because the ALJ did rely on substantial evidence for this
finding – the persuasive findings expressed in the narrative explanation of all three psychiatric
non-examining experts that, while moderately limited in the ability to persist and sustain pace,
Plaintiff can perform work involving simple tasks/simple instruction/simple changes in a low
stimulus environment for two-hour periods over the course of an eight-hour workday/forty hour
workweek at a standard work pace. Marissa L. v. Bisignano, C.A. No. 24-323MRD, 2025 WL
2463218, at *6 (D.R.I. Aug. 26, 2025) (no error in RFC without allowance for off-task time or
absenteeism based on narrative explanations of non-examining experts that claimant retained
RFC to carry out simple tasks and simple instructions based on stable work assignments over the
course of a normal 8/5/40 work routine). Further, Plaintiff does not direct the Court to any
expert or treating source who specifically opined to excessive absenteeism or off-task time
impacting the ability to work at any job. Thus, for example, presented with a form that had
check-boxes for off-task time and absenteeism, P.A. Maina did not check any of them. Id.
Based on the foregoing, this argument is rejected.
V. 	Conclusion
Having reviewed the entirety of this record, the Court finds that remand is not appropriate
and affirms the ALJ’s well supported and legally correct decision. Based on the foregoing,
Plaintiff’s Motion to Reverse the Decision of the Commissioner (ECF No. 11) is DENIED and
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Defendant’s Motion for an Order Affirming the Decision of the Commissioner (ECF No. 12) is
GRANTED. The Clerk is directed to enter judgment in favor of Defendant.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
March 18, 2026
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