# Johnson v. Kijakazi

> District Court, E.D. North Carolina · September 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10251789

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** September 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10251789

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:20-cv-000143-BO

Charlene Johnson, )
Plaintiff,
V. 5 ORDER
Kilolo Kijakazi
Acting Commissioner of Social Security )
Defendant.

This cause comes before the Court on plaintiff's motion for judgement on the pleadings
[DE 17] and defendant’s motion for judgement on the pleadings [DE 20]. A hearing was held on
the motions before the undersigned on September 16, 2021, in Edenton, North Carolina. For the
reasons that follow, plaintiff's motion is granted and this matter is remanded to the Commissioner
for further proceedings.
BACKGROUND
Plaintiff brought this action under 42 U.S.C. § 405(g) for review of the final decision of
the Commissioner denying her application for disability, disability insurance benefits, and
supplemental security income under Title II and Title XVI of the Social Security Act. On April 5,
2016, plaintiff filed applications for a period of disability, disability insurance benefits, and
supplemental security income. Plaintiff alleged a disability onset date of July 16, 2015. After initial
denials, an administrative law judge (ALJ) held a hearing on February 1, 2019 and found that
plaintiff was not disabled. The ALJ’s decision became the final decision of the Commissioner

when the Appeals Council denied plaintiff's request for review. Plaintiff then sought review of the
Commissioner’s decision in this Court.
DISCUSSION
Under the Social Security Act, 42 U.S.C. § 405(g), this Court’s review of the
Commissioner’s decision is limited to determining whether the decision, as a whole, is supported
by substantial evidence and whether the Commissioner employed the correct legal standard.
Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation and citation omitted).
An individual is considered disabled if he or she is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Act further provides that an
individual “shall be determined to be under a disability only if his physical or mental impairment
or impairments are of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B).
Regulations issued by the Commissioner establish a five-step sequential evaluation process
to be followed in a disability case. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears
the burden of proof at steps one through four, but the burden shifts to the Commissioner at step
five. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If a decision regarding disability can
be made at any step of the process the inquiry ceases. See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4).

At step one, if the Social Security Administration determines that the claimant is currently
engaged in substantial gainful activity, the claim is denied. If not, then step two asks whether the
claimant has a severe impairment or combination of impairments. If the claimant has a severe
impairment, it is compared at step three to those in the Listing of Impairments (“Listing”) in 20
C.F.R. Part 404, Subpart P, App. 1. If the claimant’s impairment meets or medically equals a
Listing, disability is conclusively presumed. If not, at step four, the claimant’s residual functional
capacity (RFC) is assessed to determine if the claimant can perform her past relevant work. If the
claimant cannot perform past relevant work, then the burden shifts to the Commissioner at step
five to show that the claimant, based on her age, education, work experience, and RFC, can
perform other substantial gainful work. If the claimant cannot perform other work, then she is
found to be disabled. See 20 C.F.R. § 416.920(a)(4).
At step one, the ALJ found that plaintiff had engaged in some work since her alleged onset
of July 16, 2015, but that only the second quarter of 2018 rose to the level of substantial gainful
activity. The evaluation continued for all periods outside of that time. At step two, the ALJ found
that plaintiff's asthma, essential hypertension, obesity, degenerative disc disease, and borderline
intellectual functioning were severe impairments. At step three, the ALJ found that plaintiff's
impairments did not meet or medically equal a Listing. At step four, the ALJ found that plaintiff
had the RFC to perform less than the full range of medium work. The ALJ found that plaintiff had
a moderate limitation regarding understanding, remembering, or applying information;
concentrating, persisting, or maintaining pace; and adapting or managing oneself. The ALJ found
that she could perform simple, routine, repetitive tasks, but not at a production rate pace. [Tr. 25].
The ALJ explained that plaintiff's time off-task could be accommodated by normal breaks. [Tr.
25]. The ALJ found that she could not perform her past relevant work as a nurse aid. At step five,

the ALJ found that plaintiff would be able to perform jobs at the medium exertional level with a
specific vocational preparation of two, including jobs such as bagger, stores laborer, or dining
room attendant.
Upon review of the record and decision, the Court concludes that remand is appropriate
because the ALJ failed to evaluate and assign appropriate weight to medical opinions in the case.!
The ALJ must carefully weigh the opinions of the medical sources on file through considering
several factors, including length of the treatment relationship, supportability, consistency, and
specialization. See 20 C.F.R. § 404.1527(c)(2). The ALJ must consider all medical opinion given
in the case, assess the weight given to each opinion, and explain any conflict between a medical
opinion and the ALJ’s RFC. Jd. at § 404.1527(b). Furthermore, under the treating physician rule,
“the opinion of a claimant’s treating physician [must] be given great weight and may be
disregarded only if there is persuasive contradictory evidence.” Arakas v. Comm’r, Soc. Sec.
Admin., 983 F.3d 83, 107 (4th Cir. 2020) (quoting Coffman v. Bowen, 829 F.2d 514, 417 (4th Cir.
1987)). A treating physician’s opinion is controlling “unless it is unsupported by medically
acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with other
substantial evidence of record.” Stephens v. Astrue, 533 F. Supp. 2d 598, 600 (E.D.N.C. 2008)
(citing 20 C.F.R. § 404.1527(d); Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)). The treating
physician rule is applicable to cases filed before March 27, 2017. See Brown v. Comm’r Soc. Sec.
Admin. □ 873 F. 3d 251, 255 (4th Cir. 2017).
Dr. Harrison, a state agency psychologist, found that plaintiff's mental impairments limited
her abilities and that she could only follow short instructions. Despite stating that he gave Dr.
Harrison’s opinion significant weight, the ALJ did not limit plaintiff to performing work with only

Because this case is remanded for further proceedings, the Court does not reach the constitutional issue raised in
plaintiffs supplemental briefing. No further briefing from the government is required.

short instructions and failed to explain the exclusion of this limitation. The ALJ gave the same
weight to the opinion of Dr. Noles, another state agency psychologist, and included all the
limitations noted by Dr. Noles without explanation. The ALJ does not justify the disparate
treatment. Additionally, the ALJ gave only partial weight to the evaluation results of Dr.
Thomason, a psychologist at Vocational Rehabilitation. Dr. Thomason found that plaintiff had
intellectual challenges that would result in difficulties communicating, socializing, and self-
directing. The ALJ acknowledged that Dr. Thomason performed a thorough examination of
plaintiff and that no opinions contradict Dr. Thomason’s findings.
The ALJ failed to adequately explain the basis for plaintiff's medium-work RFC. In
determining a claimant’s residual functional capacity, an ALJ must consider the claimant’s “ability
to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R. § 404.1545(a).
The assessment is based on all relevant evidence and may include a claimant’s own description of
limitations, such as pain. Jd. Social Security Ruling 96-8p directs ALJs to “first identify the
individual’s functional limitations or restrictions and assess his or her work-related abilities on a
function-by-function basis” before determining the level of work the claimant can perform.
Monroe v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016). While the Fourth Circuit has rejected “a per
se rule requiring remand when the ALJ does not perform an explicit function-by function analysis,”
remand “may be appropriate . .. where an ALJ fails to assess a claimant’s capacity to perform
relevant functions, despite contradictory evidence in the record, or where other inadequacies in the
ALJ’s analysis frustrate meaningful review.” Jd. (citing Mascio, 780 F.3d at 636). The ALJ does
not address how plaintiff can perform medium work at below a production pace when she has
borderline intellectual functioning.

The Court finds that remand is necessary in this case. Remand is appropriate where, as in
this case, an ALJ fails to discuss relevant evidence that weighs against the decision and fails to
properly weigh medical opinions. This case is remanded so that the ALJ can give careful
consideration to plaintiff's non-exertional limits and the availability of jobs in the economy under
step five.
CONCLUSION
Accordingly, plaintiff's motion for judgement on the pleadings [DE 17] is GRANTED and
defendant’s motion for judgement on the pleadings [DE 20] is DENIED. The Commissioner’s
decision is REMANDED for further proceedings consistent with the foregoing.

SO ORDERED, this ¥ bday of September, 2021.

. 2
ew W. BOYLE
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10251789. Public record. Not legal advice.