UNPUBLISHED 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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