SMITH v. DUDEK

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
BILLY S., )
)
Plaintiff, )
v. ) 1:25CV193
)
FRANK BISIGNANO, )
Commissioner of Social )
Security,1 )
)
)
Defendant. )
RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
Plaintiff Billy S. brought this action to obtain review of a final decision of the
Commissioner of Social Security denying his claim for disability insurance benefits and a
period of disability. The Court has before it the certified administrative record and a dispositive
brief from each party.2
I. PROCEDURAL HISTORY
Plaintiff filed an application for disability insurance benefits and a period of disability
alleging a disability onset date of October 27, 2020. (Tr. 241-42.) The application was denied
initially and upon reconsideration. (Tr. 127-31, 133-37.) After a hearing, the Administrative
Law Judge (“ALJ”) determined on April 24, 2024, that Plaintiff was not disabled under the
1 Frank Bisignano became the Commissioner of the Social Security Administration on
May 7, 2025. Pursuant to Federal Rule of Civil Procedure 25(d), Frank Bisignano is
automatically substituted as the defendant in this suit.
2 Transcript citations refer to the Administrative Transcript of Record filed manually
with the Commissioner’s Answer. (Docket Entry 5.)
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Act. (Tr. 27-86.) The Appeals Council denied a request for review, making the ALJ’s decision
the final decision for purposes of review. (Id. at 11-16.)
II. STANDARD FOR REVIEW
The scope of judicial review of the Commissioner’s final decision is specific and
narrow. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Review is limited to determining
if there is substantial evidence in the record to support the Commissioner’s decision. 42 U.S.C.
§ 405(g); Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992); Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). In reviewing for substantial evidence, the Court does not re-weigh conflicting
evidence, make credibility determinations, or substitute its judgment for that of the
Commissioner. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). The issue before the Court
is not whether Plaintiff is disabled but whether the finding that he is not disabled is supported
by substantial evidence and based upon a correct application of the relevant law. Id.
III. THE ALJ’S DECISION
The ALJ followed the well-established sequential analysis to ascertain whether the
claimant is disabled. See 20 C.F.R. § 404.1520.3 See Albright v. Comm’r of Soc. Sec. Admin., 174
3 “The Commissioner uses a five-step process to evaluate disability claims.” Hancock v.
Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012) (citing 20 C.F.R. § 416.920(a)(4)). “Under this
process, the Commissioner asks, in sequence, whether the claimant: (1) worked during the
alleged period of disability; (2) had a severe impairment; (3) had an impairment that met or
equaled the requirements of a listed impairment; (4) could return to his [or her] past relevant
work; and (5) if not, could perform any other work in the national economy.” Id. A finding
adverse to the claimant at any of several points in this five-step sequence forecloses a disability
designation and ends the inquiry. Id. “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 Secretary
to produce evidence that other jobs exist in the national economy that the claimant can
perform considering his age, education, and work experience.” Hunter, 993 F.2d at 35 (internal
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F.3d 473, 475 n.2 (4th Cir. 1999). The ALJ determined at step one that Plaintiff had not
engaged in substantial gainful activity since the alleged onset date of October 27, 2020. (Tr.
29.) The ALJ next found the following severe impairments at step two: “left shoulder
impingement syndrome, arthrosis of the left AC joint status post arthroscopy; thoracic outlet
syndrome; lumbago; cervicalgia; cervical degenerative disc disease; obstructive sleep apnea;
peripheral vascular disease; migraine; and bipolar disorder/anxiety.” (Tr. 29.) At step three,
the ALJ found that Plaintiff did not have an impairment or combination of impairments listed
in, or medically equal to one listed in, Appendix 1. (Tr. 30.)
The ALJ next set forth Plaintiff’s Residual Functional Capacity (“RFC”) and
determined that he was able to perform sedentary work with the following limitations:
he can stand/walk four hours in an eight-hour workday for one
hour at a time then would need to sit for 10 minutes. He can sit
for six hours in an eight-hour workday for one hour at a time
then would need to stand/walk for five minutes. He can never
reach overhead and occasionally reach in all other direction with
the non-dominant left upper extremity. He can never grip/grasp
with the left upper extremity. He can occasionally hand and
finger with the left upper extremity. He can occasionally [c]limb
ladders, ropes, and scaffolds. He can frequently climb ramps and
stairs, balance, and stoop. He can occasionally kneel, crouch, and
crawl. He must avoid concentrated exposure to hazards in the
workplace. He can frequently operate motor vehicles/heavy
equipment. He can frequently interact with co-workers and
supervisors. He can occasionally interact with the general public.
He cannot perform production pace or rate jobs. He can achieve
daily work output quota, but no assembly lines and he must be
able to work at his own pace.
(Tr. 32.)
citations omitted).
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At the fourth step, the ALJ determined that Plaintiff could not perform his past
relevant work. (Tr. 36.) At step five, the ALJ concluded that there were other jobs that existed
in significant numbers in the national economy that Plaintiff could perform. (Tr. 37-38.)
IV. ISSUES AND ANALYSIS
Plaintiff raises two objections. First, Plaintiff contends that “[t]he ALJ did not identify,
seek a reasonable explanation, and resolve apparent conflicts between the VE’s testimony and
the DOT/SCO.” (Docket Entry 6 at 7.) Second, Plaintiff contends that “[t]he RFC assessment
is not supported by substantial evidence.” (Id. at 15.) As explained below, neither of these
objections has merit.
A. There is no apparent conflict requiring remand.
At step five, the Commissioner has the “burden of providing evidence of a significant
number of jobs in the national economy that a claimant could perform.” Walls v. Barnhart, 296
F.3d 287, 290 (4th Cir. 2002) (citing Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000)). “The
Commissioner typically offers this evidence through the testimony of a vocational expert
[(“VE”)] responding to a hypothetical that incorporates the claimant’s limitations. If the
Commissioner meets her burden, the ALJ finds the claimant not disabled and denies the
application for benefits.” Mascio v. Colvin, 780 F.3d 632, 635 (4th Cir. 2015). At step five, the
ALJ may also consult the Dictionary of Occupational Titles (“DOT”). 20 C.F.R. § 404.1566(d),
(e). The Fourth Circuit has explained that “[t]he Dictionary of Occupational Titles, and its
companion, Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles
[SCO]. . . , are [SSA] resources that list occupations existing in the economy and explain some
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of the physical and mental requirements of those occupations. U.S. Dep’t of Labor, Dictionary
of Occupational Titles (4th ed. 1991); U.S. Dep’t of Labor, Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles (1993).” Pearson v. Colvin, 810 F.3d 204, 211
n.1 (4th Cir. 2015).
Additionally, Social Security Ruling (“SSR”) 00-4p requires ALJs to ask about conflicts
between the evidence provided by the VE and the DOT. SSR 00-4P at *4. In Pearson v. Colvin,
the Fourth Circuit clarified that the ALJ has two duties when it comes to assessing VE
testimony:
First, the ALJ must ‘[a]sk the [VE] . . . if the evidence he or she
has provided conflicts with information provided in the
[Dictionary]’; and second, ‘[i]f the [VE]’s . . . evidence appears to
conflict with the [Dictionary],’ the ALJ must ‘obtain a reasonable
explanation for the apparent conflict.’
Pearson, 810 F.3d at 208 (quoting SSR 00-4p).4
More specifically, in Pearson, a VE testified that a claimant was capable of performing
three occupations. Id. at 210. For each occupation, the DOT listed frequent reaching as a
requirement. Id. However, based on VE testimony, the ALJ found that the claimant’s
nondominant arm could only occasionally reach upward. Id. at 206. Based on the DOT’s broad
definition of reaching (i.e., “[e]xtending hand(s) and arm(s) in any direction”) the Fourth
Circuit held that the occupations identified by the expert may require frequent bilateral
4 SSR 00-4p was rescinded effective January 6, 2025, and SSR 24-3p (Use of Occupational
Information and Vocational Specialist and Vocational Expert Evidence in Disability Determinations and
Decisions) now applies to all claims filed or pending before the agency on or after January 6,
2025. SSR 00-4p continues to apply here, because this claim was adjudicated before that date.
See SSR 24-3p, 89 Fed. Reg. 97158 (S.S.A.), 2024 WL 4988840, at n.1.
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overhead reaching. Id. at 210-211. The Fourth Circuit went on to explain that an ALJ has an
affirmative “duty to make an independent identification of apparent conflicts,” regardless of
whether a conflict is identified by the VE. Id. at 208-209, 210. Because of this apparent conflict
between the VE’s testimony and the DOT, remand was required so that the ALJ could elicit
a reasonable “explanation from the expert as to whether these occupations do, in fact, require
frequent bilateral overhead reaching,” before relying on the VE testimony. Id. at 208-209, 211.
Here, the VE testified that an individual with Plaintiff’s RFC could perform the work
of an order clerk (DOT # 209.567-014) and a charge account clerk (DOT # 205.367-014).
(Tr. 77-78.) However, the DOT descriptions for both positions suggest that communicating
and interacting with the public is an essential part of the job, though it does not designate the
frequency of that interaction. (See Order Clerk, Food and Beverage, DOT # 209.567-014, 1991
WL 671794 (“Takes food and beverage orders over telephone or intercom system” and
requires frequent talking and hearing from 1/3 to 2/3 of the time); Charge-Account Clerk,
205.367-014, 1991 WL 671715 (“Interviews customers applying for charge accounts: Confers
with customer to explain type of charge plans available” and requires frequent talking and
hearing from 1/3 to 2/3 of the time). And, here, Plaintiff’s RFC and the VE testimony includes
a limitation to only occasional interaction with the general public. (Tr. 32, 76.) Consequently,
it does seem that Plaintiff has identified an unresolved apparent conflict between VE
testimony and the DOT job descriptions for the order clerk and charge account clerk
positions. And while the Fourth Circuit Cout of Appeals has not addressed the issue, there is
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some case law that suggests the same.5 As a result, the Court will assume for the purposes of
this analysis that the positions do not provide substantial evidence for the ALJ’s step five
determination.
Nevertheless, any error is harmless. The DOT description of the final position the ALJ
and VE relied upon, document preparer, does not conflict or appear to conflict with VE
testimony as Plaintiff contends. And “the ALJ only needs to identify one job that [a claimant]
can perform, given his RFC and vocational capabilities, that exists in the national economy in
significant numbers.” Cole v. Colvin, No. 1:13CV868, 2014 WL 4060145, at *4 (M.D.N.C. Aug.
14, 2014) (citing 20 C.F.R. § 404.1566(b)). Here, the ALJ found that Plaintiff could perform
the document preparer position with at least 30,000 jobs in existence in the national economy
for the document preparer job alone. (Tr. at 37, 77.) The Fourth Circuit has previously found
that 110 jobs is not an insignificant number, Hicks v. Califano, 600 F.2d 1048, 1051 n. 2 (4th
Cir.1979); see also McCall v. Saul, 844 F. App’x 680, 681 (4th Cir. 2021) (citing with approval a
case that held 11,000 jobs nationwide were significant), so 30,000 is more than sufficient. See
Cole, 2014 WL 4060145, at *4 (2500 jobs is significant). In sum, the ALJ’s step five
determination is supported by substantial evidence.
Plaintiff’s arguments to the contrary are not persuasive. He asserts that the document
5 See Neale v. Kijakazi, No. CV 21-915-SRF, 2022 WL 6111689, at *7. (D. Del. Oct. 7,
2022) (“it is generally agreed that [the Order Clerk] position[ ] require more than occasional
interaction with the public”); Lopez v. Berryhill, No. 1:18CV641, 2019 WL 1513340, at *4
(M.D.N.C. Apr. 8, 2019) (concluding that RFC with limited public contact and occasional
interaction with others appeared to conflict with DOT job description for charge account
clerk position).
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preparer6 position the ALJ concluded Plaintiff could perform appears to conflict with his
production pace limitation as described by the VE and adopted into the RFC. (Docket Entry
6 at 11-12.) This is not so.
The document preparer job, in pertinent part, requires the employee to “[i]nsert[]
material to be filmed in document folder and files folder for processing.” See supra n.6.
Plaintiff’s RFC provides that he “cannot perform production pace or rate jobs” meaning “no
assembly lines and he must be able to work at his own pace” but that “[h]e can achieve daily
work output quota” (Tr. 32). The ALJ also relied upon testimony from the VE indicating that
an individual with Plaintiff’s limitations could work at a non-production pace, meaning they
6 The DOT describes the document preparer position as follows:
Prepares documents, such as brochures, pamphlets, and catalogs,
for microfilming, using paper cutter, photocopying machine,
rubber stamps, and other work devices: Cuts documents into
individual pages of standard microfilming size and format when
allowed by margin space, using paper cutter or razor knife.
Reproduces document pages as necessary to improve clarity or
to reduce one or more pages into single page of standard
microfilming size, using photocopying machine. Stamps standard
symbols on pages or inserts instruction cards between pages of
material to notify MICROFILM-CAMERA OPERATOR
(business ser.) 976.682-022 of special handling, such as manual
repositioning, during microfilming. Prepares cover sheet and
document folder for material and index card for company files
indicating information, such as firm name and address, product
category, and index code, to identify material. Inserts material to
be filmed in document folder and files folder for processing
according to index code and filming priority schedule.
Document Preparer, Microfilming, 249.587-018, DOT # 249.587-018, 1991 WL 672349. The
VE in this case explained that this position now involved preparing documents for data entry
rather than microfilming. (Tr. 77.)
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could “achieve their daily work output quota” as long as they were not working “assembly line
fashion where they’ve only got X unit of time to be able to process one work piece before
they get it to the next person.”7 (Tr. 76.)
The Court sees no conflict apparent or otherwise here. Plaintiff’s argument is
conclusory and speculative and seems to rely on little more than the fact that the DOT job
description includes the word “process” and because, after preparing the document, that
document is passed on. (Docket Entry 6 at 11-12.) However, nothing about the document
preparer job description suggests “assembly line fashion” work as defined by the VE or work
exceeding the RFC production pace limitation. See supra n. 7. Nor has Plaintiff provided (or
7 In pertinent part, the ALJ stated to the VE:
Q. I’m going to say they can perform their work at a non-
production pace or rate. What I mean by that is that they can
perform their work such to achieve their daily work output quota
but they can’t be on assembly line fashion where they’ve only got
X unit of time to be able to process one work piece before they
get it to the next person. They’ve got to be able to work at their
own pace to get it done within the workday. . . .
. . . .
Q. Okay. Would there be any unskilled work generally available
in the national economy for the person that I described?
A. Yes. Yes, your honor.
Q. Okay. Can you give us some examples, please?
A. Yes. A document preparer, DOT 249.587-018 . . .
(Tr. 76-77.)
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has the Court found) any case law from a court where VE testimony involving a similar
production pace limitation was found to apparently conflict with the document preparer
position. The objection has no merit.
Plaintiff seems to anticipate this result, because after making his conclusory and
speculative argument that there is an apparent conflict involving the document preparer
position, he pivots towards arguing that “[e]ven if this Court finds there is no apparent conflict
with the document preparer occupation, it still should not find that the ALJ met the
Commissioner’s burden of showing that there were a significant number of jobs in the national
economy that [Plaintiff] could perform.” (Docket Entry 6 at 12.) However, here, the ALJ made
findings about how many jobs were available in the national economy for each of the
occupations, including that of document preparer (30,000 jobs). (Tr. 37.) And, as explained,
earlier, as few as 110 jobs have been found to be adequate to support a step five finding. This
objection has no merit.8
B. The RFC is supported by substantial evidence.
The RFC measures the most a claimant can do in a work setting despite the physical
and mental limitations of his impairments and any related symptoms (e.g., pain). See 20 C.F.R.
§ 404.1545(a)(1); see also Dunn v. Colvin, 607 F. App’x 264, 272 (4th Cir. 2015) (claimant’s RFC
8 Plaintiff urges the Court to follow non-binding out of circuit caselaw the undersigned
has repeatedly declined to adopt, Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1318-19 (11th
Cir. 2021). (Docket Entry 6 at 13-15.) The Court declines to follow Viverette and similar cases
cited by Plaintiff for the same reasons it has previously done so. See Tina C.S. v. Kijakazi,
1:22CV813, Slip Op. at 15-17 (M.D.N.C. Dec. 27, 2023) (Webster, M.J.); Caroline F.R v.
Kijakazi, 1:22CV227, Slip Op. at 7-9 (M.D.N.C. May 24, 2023) (Webster, M.J.).
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is “[a] medical assessment of what an individual can do in a work setting in spite of the
functional limitations and environmental restrictions imposed by all of his or her medically
determinable impairment(s).”) (internal citation omitted); Hines v. Barnhart, 453 F.3d 559, 562
(4th Cir. 2006). 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 v. Harris, 658
F.2d 260, 265 (4th Cir. 1981).
“Social Security Ruling 96-8p explains that the RFC ‘assessment must include a
narrative discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).’” Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (internal quotations
omitted). An ALJ need not discuss every piece of evidence in making an RFC determination.
See Reid v. Comm. of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014). However, the ALJ “must build
an accurate and logical bridge from the evidence to [the] conclusion.” Brown v. Commissioner,
873 F.3d 251, 269 (4th Cir. 2017). As to the role of the function-by-function analysis, “[t]he
RFC assessment must first identify the individual’s functional limitations or restrictions and
assess his or her work-related abilities on a function-by-function basis . . . . Only after that may
RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy,
and very heavy.” SSR 96-8p, 1996 WL 374184, at *1.
The Fourth Circuit has held that “meaningful review is frustrated when an ALJ goes
straight from listing the evidence to stating a conclusion.” Thomas v. Berryhill, 916 F.3d 307, 311
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(4th Cir. 2019) (explaining that “a proper RFC analysis has three components: (1) evidence,
(2) logical explanation, and (3) conclusion”). Instead, the ALJ “must both identify evidence
that supports his conclusion and ‘build an accurate and logical bridge from [that] evidence to
his conclusion.’” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018) (alteration in original)
(quoting Monroe, 826 F.3d at 189). In particular, the ALJ “must build a logical bridge between
the limitations he finds and the [vocational expert] evidence relied upon to carry the
Commissioner’s burden at step five in finding that there are a significant number of jobs
available to a claimant.” Brent v. Astrue, 879 F. Supp. 2d 941, 953 (N.D. Ill. 2012). An ALJ’s
failure to do so constitutes reversible error. See Lewis v. Berryhill, 858 F.3d 858, 868 (4th Cir.
2017). Where an ALJ’s “analysis is incomplete and precludes meaningful review,” remand is
appropriate. Monroe, 826 F.3d at 191.
Additionally, the longstanding requirements calling for adjudicators to weigh medical
opinions and give special deference to treating source opinions have changed. See 20 C.F.R. §
404.1520c(a) (effective March 27, 2017). Now, adjudicators “will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [a claimant’s] medical sources.” Id.
Nevertheless, an ALJ must consider and articulate in the administrative decision how
persuasive he or she finds each medical opinion or prior medical finding in a claimant’s case
record. See id. § 404.1520c(b). When a medical source provides more than one opinion or
finding, the ALJ will evaluate the persuasiveness of such opinions or findings as a class. See id.
§ 404.1520c(b)(1). In doing so, the ALJ is “not required to articulate how [they] considered
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each medical opinion or prior administrative medical finding from one medical source
individually.” Id.
In evaluating persuasiveness, the ALJ must articulate two factors: supportability and
consistency. Id. § 404.1520c(b)(2). Supportability is an internal check that references objective
medical evidence and supporting explanations that come from the source itself. Id. §
404.1520c(c)(1); see also Revisions to Rules, 82 Fed. Reg. at 5853. Consistency is an external check
that references evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(2); see
also Revisions to Rules, 82 Fed. Reg. at 5853. The ALJ must only address the three other
persuasiveness factors—relationship with the claimant, specialization, and the catchall “other
factors”—when two or more medical opinions, or prior administrative medical findings about
the same issue, are equally persuasive in terms of supportability and consistency. 20 C.F.R. §§
404.1520c(b)(3), 404.1520c(c)(3)-(5).
Furthermore, “[s]tatements that [claimants] are or are not disabled, . . . able to work,
or able to perform regular or continuing work,” are statements on an issue reserved to the
Commissioner. 20 C.F.R. § 404.1520b(c)(3). And statements on issues reserved to the
Commissioner are deemed evidence that “is inherently neither valuable nor persuasive to the
issue of whether [a claimant is] disabled.” 20 C.F.R. § 404.1520b(c)(1)-(3). The regulations also
make clear that, for such claims, “we will not provide any analysis about how we considered
such evidence in our determination or decision.” 20 C.F.R. § 404.1520b(c).
i. Non-Examining State Agency Psychologists
Plaintiff now asserts that “the ALJ failed to address—let alone evaluate—whether the
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consultants’ limitations to short and simple instructions and simple work were persuasive.”
(Docket Entry 11 at 3; see also Docket Entry 6 at 20.) He also suggests that the ALJ erred by
not adopting the non-examining state agency psychologists’ limitation to simple, routine,
repetitive tasks. (Docket Entry 6 at 20.) The law governing this issue is set forth above but can
also be reduced to a much simpler rule: If an RFC conflicts with an opinion from a medical
source, the ALJ must explain why in a manner susceptible to judicial review. See SSR 96-8p,
1996 WL 374184, at *7 (Jul. 2, 1996) (“If the RFC assessment conflicts with an opinion from
a medical source, the adjudicator must explain why the opinion was not adopted.”). As
explained below, the ALJ did not err here.9
Non-examining state agency psychologist Vigita Reddy, Psy.D. evaluated the Paragraph
B criteria and concluded that Plaintiff had mild limitations in his ability to understand,
remember, or apply information; mild limitations in interacting with others; mild limitations
in concentration, persistence, or pace; and moderate limitations in adapting or managing
oneself. (Tr. 92.) Dr. Reddy then concluded that Plaintiff had the mental RFC to “understand
and remember short simple instructions, but may have difficulty with detailed instructions”;
to “sustain attention and concentration for at least 2 hrs at a time for simple work”; to interact
appropriately with others in the workplace, “may have problems with adapting to routine
change [due to] problems with handling stress”; and could carry out simple, routine, and
repetitive tasks in a low stress setting. (Tr. 100-01.)
9 To be clear, the Court concludes that the ALJ provided sufficient reasons susceptible
to judicial review for declining to adopt all of the limitations set forth by the non-examining
state agency psychologists.
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On reconsideration, state psychologist Dr. James Brown likewise concluded that
Plaintiff had mild limitations in his ability to understand, remember, or apply information;
mild limitations in interacting with others; mild limitations in concentration, persistence, or
pace; and moderate limitations in adapting or managing oneself. (Tr. 109.) Dr. Brown then
reached largely the same conclusion as Dr. Reddy regarding Plaintiff’s mental RFC. He
concluded that Plaintiff had the mental RFC to “understand and remember short simple
instructions, but may have difficulty with detailed instructions”; to “sustain attention and
concentration for at least 2 hrs at a time for simple work”; could “interact appropriately with
others in the work place,” and “may have problems with adapting to routine change [due to]
problems with handling stress.” (Tr. 118-19.) However, Dr. Brown also concluded that
Plaintiff could carry out skilled work in a low stress setting. (Tr. 119.)
The ALJ concluded that Plaintiff had no limitations in understanding, remembering,
or applying information; moderate limitations in interacting with others; moderate limitations
in concentrating, persisting, or maintaining pace; and mild limitations in managing oneself.
(Tr. 31-32.) He also found the medical opinions of the non-examining state agency medical
consultants unpersuasive as follows:
State agency psychological consultants determined the claimant
only had moderate limitations in adapting or managing oneself
(Exhibit 1A; 4A). These opinions are not persuasive. They are
not well supported and are inconsistent with the record as a
whole. The record better supports moderate limitation with
regard to interacting with others due to his mood/anxiety as well
as moderate limitations in concentration due to his anxiety.
Mental status exams were relatively normal apart from his
distractibility and mood and do not support moderate limitation
in adapting or managing himself.
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(Tr. 35.)
The ALJ ultimately adopted a mental RFC with the following limitations “He can
frequently interact with co-workers and supervisors. He can occasionally interact with the
general public. He cannot perform production pace or rate jobs. He can achieve daily work
output quota, but no assembly lines and he must be able to work at his own pace.” (Tr. 32.)
The Court concludes that the ALJ properly accounted for Plaintiff’s mental limitations
in the RFC and his decision to decline to adopt the limitations provided by the non-examining
state agency psychologists was legally correct, well supported, and susceptible to judicial
review. As the ALJ correctly pointed out, the limitations set forth by the non-examining state
agency psychologists were not well supported and are inconsistent with the record as a whole.
In support of this, the ALJ gave numerous reasons supported by substantial evidence.
First, the ALJ discussed the treatment records from April 2020 which indicate that Plaintiff
was monitored for anxiety and depression. (Tr. 31, 35-36, 524.) However, Plaintiff stated that
his main symptom was “apprehension” and that he did not undergo genuine panic attacks.
(Tr. 31, 35-36, 524) (“Patient does not experience true panic attacks.”).
Second, in June 2020, Plaintiff repeatedly noted an improvement in his symptoms due
to medication (Tr. 35, 536 (“Reports improvement in symptoms of feeling down and
depressed and anxiousness.”), 541 (same); see also Tr. 1146 (“Has found paxil efficacious and
is experiencing no side effects now.”), 1151 (same), 1156 (same), 1160 (same), 1165 (same),
1168 (“He feels his Paxil is working effectively.”), 1172 (same). See Barbare v. Saul, 816 Fed.
App’x 828, 834 (4th Cir. 2020) (“It goes without saying that ‘[i]f a symptom can be reasonably
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controlled by medication or treatment, it is not disabling.’”) (quoting Gross v. Heckler, 785 F.2d
1163, 1166 (4th Cir. 1986).
Third, the ALJ correctly pointed out that Plaintiff’s mood and affect were often
assessed as normal during routine mental status examinations (Tr. 35, 513-14, 515, 517-18,
525-26, 529-30, 533-34, 537-38, 542, 831 (“Stable on current meds”), 837, 848, 854, 857, 865-
66, 869, 872, 874, 877, 886, 1131, 1140-41, 1145-46, 1150-51, 1155, 1159, 1164, 1169, 1173-
74, 1178.) The ALJ then specifically pointed out that an evaluation conducted in December
2020 showed a cooperative demeanor, average eye contact, increased activity, a normal
thought process and content, and normal cognitive function. (Tr. 35, 1132.) Plaintiff continued
to report symptoms of anxiety and panic; however, mental status evaluations throughout 2021
were largely normal, with only mild distraction and a slightly tense mood observed at times.
(Tr. 35, 1131, 1136, 1140-41, 1145-46, 1150-51, 1155, 1159, 1164, 1169, 1173-74, 1178.)
During an examination in May 2022, Plaintiff acknowledged feeling anxious occasionally. (Tr.
35, 1965, 1167.) His affect was described as anxious and ruminative concerning his chronic
shoulder pain. (Tr. 35, 1967.) Records from November 2022 indicate that he was diagnosed
with bipolar disorder (Tr. 35, 2097-2104) and although he mentioned experiencing irritability
at times, he noted that his depression was relatively stable (i.e., “pretty good”), stating that this
was “why he had been working out.” (Tr. 35, 2097.) The ALJ also acknowledged that Plaintiff
continued to be monitored for significant anxiety symptoms. (Tr. 35, 2277-2341.)
In light of all this, the Court concludes that the ALJ adequately explained and supported
his decision to find the opinions of the non-examining state agency psychologists unpersuasive
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and to decline to adopt their proposed limitations, including a limitation to short and simple
instructions and simple work and a limitation to simple, routine, and repetitive tasks.10 Instead,
the ALJ accounted for Plaintiff’s moderate limitations in interacting with others by limiting
him to frequent interaction with co-workers and supervisors and occasional interaction with
the public and accounted for his moderate limitations in concentrating, persisting, or
maintaining pace with a production pace limitation that prohibited an assembly line type
situation.11 (Tr. 32.) These limitations further accounted for any mild limitations in adapting
or managing oneself. The ALJ gave good reasons for adopting these limitations and excluding
others, described in more detail above, and Plaintiff has failed to identify any error here, much
less a material one.
Plaintiff’s objections to the contrary are not persuasive. (Docket Entry 11 at 3-5.)
Plaintiff fails to point to any evidence that compels the conclusion that the ALJ somehow
meaningfully erred here, or cherry-picked the record to support his Decision, nor does he
10 Plaintiff’s objections to the contrary are not persuasive. Angela T. v. Kijakazi is
inapposite. (Docket Entry 6 at 19.) In that case, the ALJ found the opinions of the non-
examining state agency psychological consultants “moderately persuasive” but then failed to
offer a meaningful explanation for rejecting a number of their proposed mental limitations.
See No. 1:22CV842, 2023 WL 6690879, at *5 (M.D.N.C. Oct. 12, 2023). As demonstrated
above, the ALJ in this case provided a sufficient explanation for why Plaintiff’s mental
limitations would be accounted by the RFC and demonstrated how the non-examining state
agency psychologists’ proposed restrictions were unnecessary (particularly in light of Plaintiff’s
improvement on medication and his frequent normal mental status reports) and why their
opinions were inconsistent with the record.
11 The ALJ’s non-production restriction, in and of itself, adequately accounted for
Plaintiff’s moderate limitation in concentration, persistence, and pace. See Jenna S. v. Dudek,
No. 1:24CV383, 2025 WL 723609, at *5 (M.D.N.C. Mar. 6, 2025).
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undermine the conclusions set forth in this Recommendation. This objection has no merit.
ii. Physician’s Assistant Jason Ferris
In late December 2021, Jason Ferris, PA-C, completed an opinion form. (Tr. 784.) He
believed, amongst other things, that Plaintiff could never lift between zero to five pounds and
that he should never reach above shoulder level. (Tr. 784.) The reaching restriction was
bilateral in that it did not differentiate between the right and left side. (Tr. 784.) PA Ferris was
not asked about Plaintiff’s ability to reach at other levels. (Tr. 784.) In January of 2022, a few
weeks later, PA Ferris completed a capacity questionnaire. (Tr. 429-30.) He opined, among
other things, that Plaintiff could occasionally reach at desk level, never reach overhead, and
never carry up to 10 pounds with both hands. (Tr. 429.)
The ALJ evaluated the opinions as follows:
In January 2022, Jason Ferris, PA-C submitted a capacity
questionnaire indicating [he] could constantly stand, walk, sit,
climb stairs, and use his right upper extremity (Exhibit 19E). He
could never climb ladders, balance, reach overhead, or lift up to
10 pounds. He could occasionally kneel, reach to desk level, and
finger/use keyboards on the left. In December 2021 Ferris, PA-
C opined the claimant could never lift 5 pounds (Exhibit 6F). He
could occasionally climb, balance, stoop, kneel, crouch, and
crawl. He could never reach above shoulder level. He had
moderate restrictions with regards to driving. He further opined
the claimant had not been released to work. These opinions are
somewhat persuasive. They are well supported by Ferris’ own
treatment records and are consistent with the Dr. Burgess’ exam
findings and resulting opinion (Exhibit 7F; 20F; 24F; 26F).
(Tr. 36.)
Here, the ALJ sufficiently explained his assessment of Plaintiff’s RFC and PA Ferris’
opinions and made it clear why he only adopted left side upper extremity restrictions and
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sedentary lifting restrictions. The ALJ acknowledged that Plaintiff said he was unable to work
due to left shoulder impairment. (Tr. 33.) The ALJ explained that Plaintiff’s impairments
“could reasonably be expected to cause the alleged symptoms,” but his “statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely consistent
with the medical evidence and other evidence.” (Tr. 32.) While Plaintiff’s left arm and hand
limitations restricted the amount he could lift and carry, and his ability to perform functions
like overhead reaching and handling (Tr. 32), the ALJ concluded that the record did not
support greater—i.e., disabling—left upper extremity limitations.
In evaluating Plaintiff’s left arm and hand functionality, including his reaching
limitations, the ALJ relied largely on objective medical evidence and his treatment history.
Regarding his musculoskeletal issues, the ALJ noted that Plaintiff’s treatment commenced in
November 2020 due to progressively worsening pain in the left shoulder (Tr. 33, 445-447).
Evaluations throughout 2020 indicated tenderness in the left shoulder accompanied by pain.
(Tr. 33, 447-460.) Positive results were noted in the left upper extremity in impingement
testing. (Tr. 447.) Left side upper extremity strength was assessed at 5/5, except for a 4/5
rating in external rotation. (Tr. 447.) An x-ray showed mild degenerative changes, while an
MRI indicated mild rotator cuff tendinosis and mild osteoarthritis consistent with
impingement, all on the left side. (Tr. 33, 447, 453.) Plaintiff underwent left shoulder
arthroscopy in December 2020, and he reported ongoing discomfort in the left shoulder and
neck, although some improvement was noted over time. (Tr. 33, 458-59, 476.)
By May 2021, Plaintiff continued to show left side upper extremity tenderness, limited
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range of motion, and 4/5 strength in the rotator cuff. (Tr. 33, 466.) A neurological examination
in May 2021 pointed to vascular complications rather than neurological issues, as evidenced
by negative NCV/EMG testing and paleness observed when extending his left upper
extremity (Tr. 33, 501-503, 803-04.) In July 2021, Plaintiff noted some improvement until he
tripped over his dog and fell onto the left shoulder. (Tr. 33, 476.) Subsequently, he underwent
a left shoulder coracoclavicular ligament repair on July 16, 2021. (Tr. 33, 544.) By August 2021,
he reported experiencing pain rated at 6/10 along with stiffness. (Tr. 33, 494.) Treatment
records from October 2021 indicated that the left shoulder’s range of motion was well-
tolerated, and while fullness was noted in the supraclavicular region, there was no tenderness.
(Tr. 33, 546-547.)
The ALJ considered Plaintiff’s physical therapy documentation from November 2021
which indicated a complete range of motion, although it was performed slowly and with mild
difficulty (Tr. 34, 553); his strength of the left shoulder was rated at 5/5, except for a 4+/5
rating in external rotation; he experienced some tingling sensations in his left upper extremity,
but he mentioned that these symptoms were not persistent; and imaging studies of the cervical
and thoracic spine were largely normal, with the exception of edema observed at T10 (Tr. 34,
556, 553-54, 561, 779-82, 1922-29). A left shoulder follow-up evaluation in December 2021
revealed tenderness in the left shoulder; he tolerated a range of motion up to 90 degrees well,
but experienced tightness when attempting to reach 160 degrees; and both external range of
motion and strength were found to be restricted. (Tr. 34, 789.)
An assessment conducted in March 2022 demonstrated 5/5 strength in both upper
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extremities. (Tr. 34, 1927.) He showed no tenderness upon palpation of the cervical paraspinal
muscles; was able to rise from a seated position without assistance; the Hoffman’s test results
were negative on both sides; his gait was stable, and sensation remained intact in both the
upper and lower extremities. (Tr. 34, 1927.) Neurological assessments in 2022 reported pain
in the left shoulder, trigger point tenderness in the cervical spine, and discomfort during left
shoulder abduction (Tr. 34, 2247.) Nevertheless, he maintained a normal gait and exhibited
5/5 strength throughout. (Tr. 34, 2247.)
The ALJ also considered the medical opinion evidence. 20 C.F.R. § 404.1520c. In
pertinent part, Stephen Burgess, M.D., Ph.D., conducted a consultative examination on
August 25, 2022. (Tr. 34, 1979-1983.) During the examination, Plaintiff walked with a
somewhat antalgic gait, favoring the left leg. (Tr. 34, 1981.) However, the gait was neither
unsteady nor lurching, and he appeared stable while standing. (Tr. 34, 1981.) Plaintiff seemed
comfortable both while sitting and lying supine; there were no signs of peripheral vascular
insufficiency or chronic venous stasis changes, such as pigmentation or ulceration; no edema
or hair loss was observed; however, he did exhibit increased erythema in the left arm compared
to the right. (Tr. 34, 1981.) The shoulders, elbows, and wrists were non-tender. (Tr. 34, 1981.)
Forward flexion of the extended arms reached 160 degrees on the right and 140-150 degrees
on the left. (Tr. 34, 1981.) Abduction of both extended arms in a sideways arc within the
coronal plane of the body was also to 160 degrees on the right and 140-150 degrees on the
left. (Tr. 34, 1981.) There was no atrophy present, and Plaintiff was capable of making a fist
with both hands. (Tr. 34, 1981.)
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He was able to write and pick up coins with either hand without any difficulty. (Tr. 34,
1982.) The range of motion in the finger joints of both hands was normal. (Tr. 34, 1982.) An
examination of the legs showed no tenderness, redness, warmth, swelling, fluid, laxity, or
crepitus in the knees, ankles, or feet. (Tr. 34, 1982.) Muscle strength was assessed as normal at
5/5 in the right upper and lower extremities, and 5-/5 in the left. (Tr. 34, 1982.)
Dr. Burgess opined that Plaintiff’s ability to perform work-related activities such as
bending, stooping, lifting, walking, crawling, squatting, carrying, traveling, pushing and pulling
heavy objects appeared to be mildly and intermittently more moderately impaired. (Tr. 34-35,
1983.) The ALJ found this opinion somewhat persuasive and explained that these limitations
were generally supported by Dr. Burgess’ exam findings, which were consistent with the record
as a whole. (Tr. 34-35, 1983.) However, the ALJ explained that the limitations were vague with
regard to specific functional limitations. (Tr. 35-36.) Notwithstanding this, the ALJ accounted
for Plaintiff’s upper extremity impairment by including the limitations that he can never reach
overhead and occasionally reach in all other direction with the non-dominant left upper
extremity; he can never grip/grasp with the left upper extremity; and he can occasionally hand
and finger with the left upper extremity. (Tr. 32.)
By discussing multiple lines of evidence to support the RFC limitations adopted, the
ALJ provided enough explanation to permit meaningful review. No more explanation was
required. Plaintiff’s objections to the contrary are not persuasive. Plaintiff’s selective
discussion fails to cite any evidence that compels a different outcome. (Docket Entry 6 at 4-
6, 21-23; Docket Entry 11 at 5-6.) Additionally, Plaintiff contends that the ALJ never explained
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why he rejected PA Ferris’ lifting restriction (never lifting between zero to five pounds and
never carrying up to ten pounds with both hands). (Docket Entry 6 at 21-22.) However, as
demonstrated above, Plaintiff showed no loss of strength in his right arm and only slight loss
of strength in his left arm. He even told Dr. Burgess he could lift and carry up to 25-20 pounds
by bearing most of the weight with his right arm. (Tr. 1980.) “Sedentary work involves lifting
no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools.” 20 C.F.R. § 404.1567(a) (emphasis added). Additionally, the ALJ’s
analysis of the medical record (described above and incorporated herein) makes it clear why
he concluded that PA Ferris’ work preclusive lifting restrictions were rejected.
Likewise, Plaintiff contends that the ALJ failed to explain why he rejected right arm
reaching restrictions. (Docket Entry 6 at 22.) But as the ALJ pointed out Plaintiff testified at
his hearing that he stopped working because of problems with his left side. (Tr. 33, 51-72.) He
did not mention his right side. (Tr. 33, 51-72.) Beyond this, the ALJ’s analysis of the medical
records (described above and incorporated herein) also makes it clear why he declined right
arm reaching restrictions. For example, Plaintiff had full right arm strength and good right arm
range of motion and Dr. Burgess found no tenderness in the shoulders, elbows, wrists, hands
and no tenderness or paravertebral spasm in the cervical, thoracic, or dorsolumbar spine. (See,
e.g., Tr. 34, 2247, 1927, 1981-82.) Beyond this, there is little evidence in the record that Plaintiff
had any significant limitations in his right upper extremity. As shown in this Recommendation,
Plaintiff complained of, and the record generally addresses, Plaintiff’s left side issues, including
two left shoulder surgeries.
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Moreover, Plaintiff’s recitation of the medical evidence in his brief generally addresses
evidence related to his left side deficiencies and makes little mention of any evidence
suggesting a right-side deficiency. (Docket Entry 6 at 4-6.) The only exception to this is a
statement that Plaintiff made to Dr. Burgess that “using the right side can still cause pain on
the left.” (Tr. 1780.) This statement does not compel the conclusion that the ALJ erred by
omitting any right arm restrictions. Asserting that an activity “can” cause pain does little to
explain the frequency, scope, magnitude, or existence of any pain. Moreover, an individual is
not required to be pain-free or experience no discomfort to be found not disabled. See Gross
v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986) (pain is not disabling per se).12
In his reply brief (Docket Entry 11 at 5) Plaintiff also points to additional medical
records, which he contends show that he had significant limitations in his right side as well as
his left. (Docket Entry 11 at 5 citing Tr. 503, 1633-34, 1638, 1642, 2018, 2053, 2065, 2263, and
2267.) However, these medical records all indicate that Plaintiff has good power, tone,
strength, and full range of motion throughout. (Id.) They do not compel the conclusion that
the ALJ somehow meaningfully erred here, or cherry-picked the record to support his
Decision, nor do they undermine the conclusions set forth in this Recommendation.
Finally, the ALJ did, at least implicitly, adopt a reaching restriction of the right upper
extremity. The document preparer position the ALJ concluded that Plaintiff could perform
12 Plaintiff also points to other medical opinions and contends that they are consistent
with Dr. Ferris’ restrictions. (Docket Entry 6 at 23.) However, Plaintiff has not pointed to
any evidence that would compel a different outcome here and this is no more than a request
to reweight the evidence, which the Court will not do. Craig, 76 F.3d at 589.
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requires frequent (rather than constant) reaching. See Document Preparer, DOT # 249.587-
018, 1991 WL 672349 (“Reaching: Frequently - Exists from 1/3 to 2/3 of the time”). The
administrative record in this case—described in detail throughout this Recommendation—
does not compel the conclusion that Plaintiff is limited to only occasional13 (rather than
frequent or constant) reaching of the right upper extremity. For all of these reasons, Plaintiff’s
second objection lacks merit.14
V. CONCLUSION
After careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is legally correct, supported by substantial evidence, and susceptible
to judicial review. Accordingly, this Court RECOMMENDS that the final decision of the
Commissioner be upheld.
/s/ Joe L. Webster
United States Magistrate Judge
December 23, 2025
13 “Occasional” is defined by agency regulations as “occurring from very little up to
one third of the time.” S.S.R. 83-10, 1983 WL 31251, at *5; S.S.R. 96-9p, 1996 WL 374185,
at *3.
14 The Commissioner urges the Court to take into consideration the fact that Plaintiff’s
wife completed a third-party function report stating that during the alleged period of disability
Plaintiff cared for a dog, did some cooking and meal preparation, dusted, did laundry,
performed household tasks, did yard work, shopped for groceries, managed finances and bills,
socialized, and drove. (Docket Entry 10 at 12 citing Tr. 294-301.) While the ALJ did briefly
mention Plaintiff’s activities of daily living by accurately pointed out that Plaintiff reported
that “he had been working out” (Tr. 31, 2334), he did not specifically mention this third party
report in his Decision. Consequently, the Court has not relied upon it in assessing the ALJ’s
Decision for substantial evidence.
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