# BOND v. KIJAKAZI

> District Court, M.D. North Carolina · August 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10253776

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
4
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).
5
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.
7
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

10
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
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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253776. Public record. Not legal advice.