BOND v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

EARL BOND, )

)

Plaintiff, )

)

v. ) 1:19CV901

)

ANDREW M. SAUL, )

Commissioner of Social )

Security, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Earl Bond, brought this action pursuant to the

Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Commissioner of Social Security,

denying Plaintiff’s claim for Disability Insurance Benefits

(“DIB”). (Docket Entry 1.) Defendant has filed the certified

administrative record (Docket Entry 8 (cited herein as “Tr. __”)),

and both parties have moved for judgment (Docket Entries 11, 13;

see also Docket Entry 12 (Plaintiff’s Brief); Docket Entry 14

(Defendant’s Memorandum); Docket Entry 15 (Plaintiff’s Reply). For

the reasons that follow, the Court should remand this matter for

further administrative proceedings.

I. PROCEDURAL HISTORY

Plaintiff applied for DIB, alleging a disability onset date of

June 19, 2014. (Tr. 199-200.) Upon denial of that application

initially (Tr. 79-92, 113-16) and on reconsideration (Tr. 93-112,

118-20), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 123-24). Plaintiff

(represented by counsel), his wife, and a vocational expert (“VE”)

testified at the hearing. (Tr. 52-78.) The ALJ subsequently ruled

that Plaintiff did not qualify as disabled under the Act. (Tr. 31-

46.) The Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 18-25, 195-98, 321-26), thereby making the ALJ’s ruling

the Commissioner’s final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings:

1. [Plaintiff] last met the insured status requirements

of the . . . Act on September 30, 2016.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from his alleged onset date of

June 19, 2014 through his date last insured of September

30, 2016.

3. Through the date last insured, [Plaintiff] had the

following severe impairments: history of degenerative

disc disease and degenerative joint disease, status post

surgery; chronic obstructive pulmonary disease; affective

disorders depression and bipolar disorder; and anxiety.

. . .

4. Through the date last insured, [Plaintiff] did not

have an impairment or combination of impairments that met

or medically equaled the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1.

. . .

5. . . . [T]hrough the date last insured, [Plaintiff]

had the residual functional capacity to perform (lift or

carry 50 pounds occasionally and 25 pounds frequently,

stand or walk for six hours out of an eight-hour workday

2

and sit for six hours out of an eight-hour workday) . . .

except he could occasionally climb stairs and ramps but

never ladders, ropes, or scaffolds. He could

occasionally kneel, crouch, and crawl. Overhead reaching

would be limited to occasional. Handling is limited to

frequent, not constant. He should avoid concentrated

exposure to extreme cold, pulmonary irritants,

unprotected heights, excessive vibrations, and hazardous

machinery. [Plaintiff] would be limited to unskilled

work only that requires no more than occasional contact

with the public and with co-workers.

. . .

6. Through the date last insured, [Plaintiff] was

unable to perform any past relevant work.

. . .

10. Through the date last insured, considering

[Plaintiff’s] age, education, work experience, and

residual functional capacity, there were jobs that

existed in significant numbers in the national economy

that [Plaintiff] could have performed.

. . .

11. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from June 19, 2014, the

alleged onset date, through September 30, 2016, the date

last insured.

(Tr. 36-46 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). Even given

3

those limitations, the Court should remand this case for further

administrative proceedings.

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Social Security Commissioner].” Mastro, 270 F.3d at

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176 (internal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to

whether a claimant is disabled, the responsibility for that

decision falls on the [Social Security Commissioner] (or the ALJ).”

Id. at 179 (internal quotation marks omitted). “The issue before

[the Court], therefore, is not whether [the claimant] is disabled,

but whether the ALJ’s finding that [the claimant] is not disabled

is supported by substantial evidence and was reached based upon a

correct application of the relevant law.” Craig v. Chater, 76 F.3d

585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability 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 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).1 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

1 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

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has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of Soc. Sec. Admin., 174 F.3d 473, 475 n.2

(4th Cir. 1999).2 A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.

For example, “[t]he first step determines whether the claimant is

engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the

claimant is ‘severely’ disabled. If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).

2 “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

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s residual functional capacity

(‘RFC’).” Id. at 179.3 Step four then requires the ALJ to assess

whether, based on that RFC, the claimant can “perform past relevant

work”; if so, the claimant does not qualify as disabled. Id. at

179-80. However, if the claimant establishes an inability to

return to prior work, the analysis proceeds to the fifth step,

whereupon the ALJ must decide “whether the claimant is able to

perform other work considering both [the RFC] and [the claimant’s]

vocational capabilities (age, education, and past work experience)

to adjust to a new job.” Hall, 658 F.2d at 264-65. If, at this

step, the government cannot carry its “evidentiary burden of

proving that [the claimant] remains able to work other jobs

3 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). 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, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

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available in the community,” the claimant qualifies as disabled.

Hines, 453 F.3d at 567.4

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ credited opinion evidence that [Plaintiff]

requires a low-stress work environment, but [the] RFC doesn’t

account for this limitation or explain why it was omitted” (Docket

Entry 12 at 10 (bold font and single-spacing omitted); see also

Docket Entry 15 at 1-5);5 and

2) “[t]he ALJ misstated the opinion findings [of consultative

psychological examiner Johnny L. Kirby, Jr., M.A., C.A.S. (‘CPE

Kirby’)] in order to reject [them]” (Docket Entry 12 at 18 (bold

font and single-spacing omitted); see also Docket Entry 15 at 5-

8).6

4 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

5 Pin citations to page numbers refer to the page numbers placed in the

footer of the document by the CM/ECF system.

6 Supervising psychologist Dr. Andrea N. Sinclair also signed CPE Kirby’s

report (see Tr. 412), but because the ALJ and the parties here refer solely to

CPE Kirby in discussing the report, this Recommendation will do the same.

8

Defendant contends otherwise and seeks affirmance of the ALJ's

decision. (See Docket Entry 14 at 14-25.)

1. Low-Stress Environment

In Plaintiff’s first issue on review, he argues that “[t]he

ALJ credited opinion evidence that [Plaintiff] requires a low-

stress work environment, but [the] RFC doesn’t account for this

limitation or explain why it was omitted.” (Docket Entry 12 at 10

(bold font and single-spacing omitted).) In particular, Plaintiff

points out that the “[t]he ALJ gave significant weight to the

opinions of the [state a]gency psychological consultants who found

that [Plaintiff] required a low[-]stress work environment (id. at

12 (citing Tr. 44)), deemed the consultants’ low-stress limitation

“*consistent with the evidence’” (id. at 13 (quoting Tr. 44)), and

indicated that the consultants’ Jlow-stress limitation “was

reflected in [the] RFC” (id. at 14 (citing Tr. 44)). According to

Plaintiff, the “consultants provided some guidance regarding what

they meant by ‘low-stress’” (id. at 15), including, inter alia,

limitations to a “non-production pace,” “reduced social demands,”

and “a stable work assignment” (id. (citing Tr. 102, 108)), “[b]ut

the ALJ did not address these limitations head-on or explain why he

did not credit them” (id. at 16). Plaintiff argues that “the ALJ’s

error is not harmless” (id. at 17), “[bl]lecause the jobs [cited by

the VE and adopted by the ALJ at step five of the SEP] all include

some level [of] production pace (id. (citing Tr. 45, Dictionary of

Occupational Titles (“DOT”), No. 616.685-058 (“Riveting-Machine

Operator”), 1991 WL 685094 (G.P.O. 4th ed. rev. 1991), DOT, No.

726.687-026 (“Lamination Assembler, Printed Circuit Boards”), 1991

WL 679636, DOT, No. 222.587-046 (“Stacker”), 1991 WL 672125, and

referencing Tr. 72-73)). Plaintiff’s contentions have merit and

warrant remand.

The applicable regulations make clear that, although, as a

general matter, opinions from an examining source deserve more

weight than those from a non-examining source, see 20 C.F.R.

§ 404.1527(c)(1), non-examining state agency consultants constitute

“highly qualified physicians, psychologists, and other medical

specialists who are also experts in Social Security disability

evaluation[,]” 20 C.F.R. § 404.1527(e)(2)(I). Indeed, ALJs can

permissibly credit the opinions of non-examining state agency

consultants, who typically render their opinions without the

benefit of a full record, over those of examining sources, to the

extent the non-examining sources’ opinions remain consistent with

the evidence received subsequent to their opinions. See Lapeer v.

Astrue, No. 5:08–CV–256–D(1), 2009 WL 2487038, at *7 (E.D.N.C. Aug.

13, 2009) (unpublished).

Here, the state agency psychological consultant at the initial

level of review found that Plaintiff “would need a low[-]stress

environment” (Tr. 89), and the consultant upon reconsideration

opined that Plaintiff could “perform simple[,] routine and

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repetitive tasks (SRRTs) at [a] non-production pace in a low[-

Jstress position with reduced social demands” (Tr. 102 (emphasis

added)). That consultant elaborated further that Plaintiff

remained able to “sustain sufficient attention to complete

Ssimple[,] routine tasks for a 2[-]hour period at a non-rapid to

semi-rapid pace” (Tr. 107 (emphasis added)), that Plaintiff could

interact with others “in a workplace setting with minimal social

demands” (Tr. 108 (emphasis added)), and that Plaintiff could

“function adequately in a stable work assignment performing simple

tasks in a low-stress position that is not highly production

oriented or socially demanding” (id. (emphasis added)). In turn,

the ALJ assessed and weighed the consultants’ opinions as follows:

As for the psychological consultants, they opined

[Plaintiff] could sustain concentration for and complete

simple tasks and could relate to others appropriately.

They also opined [Plaintiff] should work in a_low[-

|Jstress environment. These limitations are consistent

with the evidence, generally, and are reflected in the [

RFC]. I also give them significant weight.

(Tr. 44 (emphasis added) .)

Despite the ALJ’s assignment of “significant weight” to the

consultants’ low-stress limitation and his representation that the

RFC “reflect[s]” that limitation (id.), the ALJ’s decision fails to

explain how the RFC’s limitation to “unskilled work only that

requires no more than occasional contact with the public and with

co-workers” (Tr. 39) accounts for the consultants’ low-stress

limitation (and particularly the further elaboration of that

11

limitation by the reconsideration-level consultant involving

restrictions on pace and job assignment stability (see Tr. 102,

107, 108)).’ That failure prevents the Court from meaningful

judicial review of the path of the ALJ’s reasoning.

In response, the Commissioner first argues that “the ALJ was

not constrained to include a limitation to only ‘low-stress’ work,

despite affording the state agency psychologists’ opinions

‘significant’ weight[,] . . . because even when an ALJ grants

significant weight to an opinion overall, he is not required to

incorporate every limitation from that source in the RFC.” (Docket

Entry 14 at 17 (citing, inter alia, Bacnik v. Colvin, No.

1:12cV801, 2014 WL 3547387, at *4 n.7 (M.D.N.C. July 17, 2014)

(unpublished) (Eagles, J.)).) The Commissioner’s argument,

however, glosses over the fact that, when an ALJ does not include

certain limitations in the RFC from a source given significant

weight, the reviewing court must remain able to ascertain from the

ALJ’s decision why the ALJ omitted those limitations. See, e.g.,

Monroe v. Colvin, 826 F.3d 176, 189 (4th Cir. 2016) (“We have held

Although not argued by Plaintiff (see Docket Entries 12, 15), the ALJ’s

limitation to “unskilled work only” (Tr. 39) does not, on its face, account for

the reconsideration-level consultant’s limitation of Plaintiff to SRRTs (see Tr.

102). See Bennett v. Colvin, No. 4:12CV152, 2013 WL 4417605, at *4 (E.D.N.C.

Aug. 15, 2013) (unpublished) (holding that “SRRTs are a narrower subset than the

full range of unskilled work”); see also McClendon v. Astrue, No. 1:10CV411, 2012

WL 13525, at *7 (M.D.N.C. Jan. 4, 2012) (unpublished) (Sharp, M.J.) (same),

recommendation adopted, 2012 WL 1414327 (M.D.N.C. Apr. 24, 2012) (unpublished)

(Beaty, Jr., J.).

12

that ‘[{a] necessary predicate to engaging in substantial evidence

review is a record of the basis for the ALJ’s ruling,’ including ‘a

discussion of which evidence the ALJ found credible and why

. . .’” (emphasis added) (quoting Radford v. Colvin, 734 F.3d

288, 295 (4th Cir. 2013))). For example, in Bacnik, the Court

found that the ALJ’s decision explained why the ALJ had not adopted

the social restrictions opined by the reconsideration-level state

agency psychological consultant. See Bacnik, 2014 WL 3547387, at

In that regard, the Court noted that, “immediately after

pointing out that the opinions of [the state agency psychological

consultants] limited [the plaintiff] to [SRRTs], the ALJ also

explicitly cited and gave great weight to the conclusion of [a

consultative psychological examiner] that [the plaintiff] would not

have trouble getting along with others from an anger management

perspective.” Id. (internal quotation marks omitted).® The ALJ’s

decision here lacks any explanation for the omission of

restrictions on pace and job assignment stability from the RFC.

Next, the Commissioner contends that “the ALJ did, in fact,

incorporate many of the limitations contemplated within the meaning

of the word [low-stress]” in the RFC. (Docket Entry 14 at 18

® Bacnik also differs from the instant case because, in Bacnik, only one

of the state agency psychological consultants found the plaintiff’s mental

condition necessitated social restrictions. See Bacnik, 2014 WL 3547387, at *4.

In contrast, here, both consultants believed Plaintiff required a low-stress work

environment (see Tr. 89, 108), with the reconsideration-level consultant, as

discussed above, providing further elaboration on the meaning of “low-stress”

(see Tr. 102, 107, 108).

13

(emphasis added).) More specifically, the Commissioner asserts

that “the ALJ accounted for ‘low-stress’ . . . by restricting

Plaintiff to only occasional interaction with the public and

coworkers.” (Id. (citing Tr. 39, 108).) As an initial matter,

even assuming arguendo that the ALJ’s limitation to occasional

interaction with the public and coworkers sufficiently captured the

reconsideration-level consultant’s definition of low-stress work as

not “socially demanding” (Tr. 108), the Commissioner has shown only

that the ALJ accommodated one part of that consultant’s definition

of low-stress and makes no argument that the interaction

restriction somehow accounts for the consultant’s restrictions on

pace and/or job assignment stability (see Docket Entry 14).

Furthermore, the ALJ did not place any restriction on Plaintiff’s

interaction with supervisors (see Tr. 39), which calls into

question whether the interaction restriction in the RFC

sufficiently accounts for the consultant’s limitation to jobs that

do not qualify as “socially demanding” (Tr. 108).

The Commissioner further maintains that “the jobs provided by

the VE [and adopted by the ALJ at step five] fit th[e] description

[of ‘not highly production oriented’].” (Docket Entry 14 at 18

(quoting Tr. 108).) According to the Commissioner, “[t]he

definitions [of the jobs in the DOT] do not indicate that the

individual is required to perform the jobs at any particular pace

or production level” and “fail to support that these jobs are

14

‘highly production oriented’ - a different definition from simply

having any level of pace.” (Id. at 18-19 (citing DOT, No. 616.685-

058, 1991 WL 685094, DOT, No. 726.687-026, 1991 WL 679636, DOT, No.

222.587-046, 1991 WL 672125, and quoting Tr. 108 (emphasis supplied

by Commissioner)).} The Commissioner’s position overlooks the fact

that the reconsideration-level consultant provided three different

expressions of his non-production limitation (see Tr. 102, 107,

108). Although the jobs in question might fit within the “not

highly production oriented” limitation (Tr. 108), an open question

remains whether those jobs conform with limitations to “a non-

production pace” (Tr. 102) or “a non-rapid or semi-rapid pace” (Tr.

107). Furthermore, despite the DOT job descriptions’ omission of

express reference to production requirements or conveyor belts, see

DOT, No. 616.685-058, 1991 WL 685094, DOT, No. 726.687-026, 1991 WL

679636, DOT, No. 222.587-046, 1991 WL 672125, all three jobs

certainly involve assembly work in a manufacturing environment

which, as recognized by Plaintiff, “other jobs/workers would be

reliant upon being done in a timely fashion” (see Docket Entry 15

at 4). Ultimately, the ALJ in conjunction with the VE (and not the

Court) must determine whether the three jobs accommodate

limitations to a non-production pace, a non-rapid or semi-rapid

pace, or not highly production oriented work.

The Commissioner additionally posits that “the ALJ also

afforded ‘significant’ weight to the opinion of Dr. [Carla]

15

Duszlak” (Docket Entry 14 at 19 (citing Tr. 43, 395)), who

“specifically opined that Plaintiff ‘would likely be able at this

point to deal with the stress of a full-time job in his current

condition’” (id. (quoting Tr. 395) (italics supplied by

Commissioner) (underscoring added)).9 That observation does not

obviate the need for remand. As an initial matter, Dr. Duszlak did

not opine that Plaintiff could handle the stress of any full-time

job. (See Tr. 395.) Further, as Plaintiff points out (see Docket

Entry 15 at 2-3), the ALJ assigned all three of the opinions in

question the exact same weight - “significant weight” (Tr. 43, 44)

- and thus, to the extent Dr. Duszlak’s opinion, which lacks any

specific limitation on Plaintiff’s ability to deal with workplace

stress, conflicts with both of the state agency psychological

consultants’ opinions, which include such stress-related

limitations (compare Tr. 395, with Tr. 89, 102, 107, 108), that

unresolved conflict underscores the conclusion that the ALJ did not

sufficiently explain the restrictions adopted in and/or omitted

from the RFC.

Lastly, the Commissioner proffers the ALJ’s “analysis of the

medical evidence” as supplying the necessary explanation for the

9 Although the ALJ discussed Dr. Duszlak’s report in a fair amount of

detail, the ALJ did not specifically mention or assign weight to Dr. Duszlak’s

opinion that Plaintiff “would likely be able at this point to deal with the

stress of a full-time job in his current condition” (Tr. 395). (See Tr. 43.)

16

omission of restrictions regarding pace and job assignment

stability in the RFC. (Docket Entry 14 at 19.) In particular, the

Commissioner points out that “the ALJ explained that the record

failed to support disabling symptoms or impairments” and “that

Plaintiff demonstrated mental stability, and self-reported

improvement with treatment.” (Id. at 20 (citing Tr. 43).) The

Commissioner’s argument might have more probative force had the ALJ

simply afforded the state agency psychological consultants’

opinions as a whole “significant weight” as consistent with the

record. The ALJ here, however, expressly identified the

consultants’ opinions that Plaintiff required a low-stress work

environment, found that limitation “consistent with the evidence,”

afforded it “significant weight,” and indicated that the RFC

“reflected” the low-stress limitation. (Tr 44.) The ALJ’s

generalized discussion and analysis of the mental evidence of

record does not resolve or explain the disconnect between the

above-described statements and the lack of limitations on pace and

job assignment stability in the RFC.

In sum, the ALJ reversibly erred in his evaluation of the

state agency psychological consultants’ opinions, requiring remand.

2. CPE Kirby’s Opinions

In Plaintiff’s second and final assignment of error, he

alleges that “the ALJ misstated the opinion findings [of CPE Kirby]

in order to reject [them].” (Docket Entry 12 at 18 (bold font and

17

single-spacing omitted); see also Docket Entry 15 at 5-8.) More

specifically, Plaintiff notes that CPE Kirby opined that Plaintiff

would “experience difficulty in understanding, retaining, and

following instructions and in tolerating the stress and pressures

associated with day-to-day work activity, as well as lesser

problems in relating to others, including fellow workers and

supervisors” (id. at 20 (citing Tr. 411)), and that Plaintiff

“would experience difficulty in managing benefits” (id. (citing Tr.

411-12)). Plaintiff notes that the ALJ assigned little weight to

CPE Kirby’s opinion that Plaintiff “would have difficulty managing

his finances or managing benefits in his own best interests,” but

then further discounted CPE Kirby’s opinions because he did not

“provide a function-by-function assessment of [Plaintiff]’s

capacity or indicate in any way what other limitations [Plaintiff]

would face because of his mental impairments.” (Id. at 21 (citing

Tr. 42).) According to Plaintiff, the ALJ’s failure to acknowledge

or weigh CPE Kirby’s above-described opinions regarding Plaintiff’s

ability to handle instructions, work-related stress, and social

interaction constitutes prejudicial error, because “the limitations

assessed by [CPE] Kirby would impact the [medium, unskilled]

occupational base.” (Id.)

In response, the Commissioner defends the ALJ’s evaluation of

CPE Kirby’s opinions on three grounds. First, the Commissioner

argues that “[t]he ALJ appropriately discounted [CPE Kirby’s]

18

opinion in light of its lack of support, given that [CPE] Kirby did

not explain the limitations in a function-by-function assessment.”

(Docket Entry 14 at 23 (citing Tr. 42, as well as 20 C.F.R.

§ 404.1527(c)(3)).) Second, the Commissioner contends that CPE

Kirby, in fact, “did not provide a function-by-function

assessment,” because he, “in only vague terms, noted that Plaintiff

would have ‘some’ difficulties with instructions and in tolerating

stress, and that he had “somewhat lesser’ difficulties in relating

to others.” (Id. at 24 (citing Tr. 411).) Third, the Commissioner

points out that CPE Kirby “never stated that Plaintiff was

incapable of understanding, retaining, or following instructions;

tolerating work[]stress; or relating to others,” but “[r]ather []

indicated ‘some’ – but not disabling – levels of difficulty.” (Id.

(quoting Tr. 411).) According to the Commissioner, CPE Kirby’s

above-described opinions remain “entirely consistent with the ALJ’s

determination that Plaintiff could perform unskilled work requiring

no more than occasional contact with the public or coworkers” (id.

(citing Tr. 39) (footnote omitted)), and that “[r]emand is

therefore not warranted on this basis” (id. at 25 (citing Shinseki

v. Sanders, 556 U.S. 396, 407 (2009))).

In reply, Plaintiff counters the Commissioner’s arguments by

noting that “the ALJ did not reject [CPE] Kirby’s opinion because

of a lack of support, but because . . . he did not make a function-

by-function assessment” (Docket Entry 15 at 6 (citing Tr. 42)), and

19

that “[t]his Court cannot affirm based on post hoc rationales that

might have supported the ALJ’s conclusion” (id. at 6-7 (citing

Watkins v. Commissioner of Soc. Sec., 457 F. Appo’x 868, 872 (11th

Cir. 2012))). Plaintiff further points out that CPE Kirby’s

opinions harmonize “with the opinions of the [state a]gency

psychologists that [Plaintiff] requires a low[-]stress work

setting.” (Id. at 7-8 (citing Tr. 79-91, 93-110).)

In this case, the ALJ erred in his analysis of CPE Kirby’s

opinions. The ALJ’s analysis contained the following rationale:

As for functional capacity, [CPE] Kirby opined

[Plaintiff] had below-average cognitive functioning that

would translate to difficulties with money management and

dependency on others to manage his finances. [CPE] Kirby

also opined [Plaintiff] would have difficulty managing

benefits in his own best interests. Otherwise, [CPE]

Kirby did not provide a function-by-function assessment

of [Plaintiff]’s capacity or indicate in any way what

other limitations [Plaintiff] would face because of his

mental impairments. Thus, the opinion offers little

assistance in developing a[n RFC] for [Plaintiff] and is,

therefore, given little weight.

(Tr. 42 (emphasis added) As the above-emphasized language makes

clear, the ALJ did not discount CPE Kirby’s opinions because they

lacked support, as argued by the Commissioner (see Docket Entry 14

at 23), but because, in the ALJ’s assessment, they did not contain

any mental functional limitations (see Tr. 42). Moreover, because

the ALJ did not mention (and indeed denied the existence of) CPE

Kirby’s opinions regarding Plaintiff’s ability to handle

instructions, work-related stress, and social interaction, the ALJ

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did not discount them on grounds of vagueness, as urged by the

Commissioner (see Docket Entry 14 at 24). Furthermore, as

Plaintiff argued (see Docket Entry 15 at 6-7), the Court cannot

consider post-hoc rationalizations, see Anderson v. Colvin, No.

1:10CV671, 2014 WL 1224726, at *1 (M.D.N.C. Mar. 25, 2014)

(unpublished) (Osteen, C.J.) (citing Securities & Exch. Comm’n v.

Chenery Corp, 332 U.S. 194, 196 (1947)).

Both parties advance arguments directed at prejudice (or the

lack thereof) from the ALJ’s error in evaluating CPE Kirby’s

opinions. Plaintiff argues that the ALJ’s failure to acknowledge

or weigh CPE Kirby’s opinions regarding Plaintiff’s ability to

handle instructions, work-related stress, and social interaction

constitutes prejudicial error, because “the limitations assessed by

[CPE] Kirby would impact the [medium, unskilled] occupational

base.” (Docket Entry 12 at 21.) In response, the Commissioner

urges that CPE Kirby’s above-described opinions remain “entirely

consistent with the ALJ’s determination that Plaintiff could

perform unskilled work requiring no more than occasional contact

with the public or coworkers” (Docket Entry 14 at 24 (citing Tr.

39) (footnote omitted)), and that “[r]emand is therefore not

warranted on this basis” (id. at 25 (citing Shinseki, 556 U.S. at

407)). The Court need not determine whether the ALJ’s error in

analyzing CPE Kirby’s opinions amounts to prejudicial error in

light of the need for remand based on the ALJ’s prejudicial error

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in failing to account for the state agency psychological

consultants’ stress-related restrictions in the RFC. Upon remand,

the ALJ must re-evaluate the state agency psychological

consultants’ opinions, as well as CPE Kirby’s opinions, and should

rely upon a vocational resource to determine the impact of any

mental restrictions in the RFC on the available jobs in the

national economy.

III. CONCLUSION

Plaintiff has established grounds for remand.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be vacated and that the matter be remanded

under sentence four of 42 U.S.C. § 405(g), for further

administrative proceedings consistent with this recommendation. As

a result, Defendant’s Motion for Judgment on the Pleadings (Docket

Entry 13) should be denied and Plaintiff’s Motion for a Judgment

Reversing or Modifying the Decision of the Commissioner of Social

Security or Remanding the Cause for a Rehearing (Docket Entry 11)

should be granted.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

August 11, 2020

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