CHAFFINS v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRAYDEN THOMAS CHAFFINS, )

)

Plaintiff, )

)

v. ) 1:21CV260

)

KILOLO KIJAKAZI, )

Acting Commissioner of )

Social Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Brayden Thomas Chaffins, brought this action

pursuant to the Social Security Act (the “Act”) to obtain judicial

review of a final decision of Defendant, the Acting Commissioner of

Social Security, denying Plaintiff’s claim for Adult Child’s

Disability Benefits (“CDB”). (Docket Entry 2.) Defendant has

filed the certified administrative record (Docket Entry 9 (cited

herein as “Tr. __”)), and both parties have moved for judgment

(Docket Entries 13, 15; see also Docket Entry 14 (Plaintiff’s

Memorandum); Docket Entry 16 (Defendant’s Memorandum)). For the

reasons that follow, the Court should enter judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for CDB (Tr. 184-85), alleging a disability

onset date of January 28, 2000 (see Tr. 185).* Following denial of

that application initially (Tr. 85-100, 116-19) and on

reconsideration (Tr. 101-15, 124-31), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 132-34).

Plaintiff, his attorney, and a vocational expert (“VE”) attended

the hearing. (Tr. 43-84.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act. (Tr. 14-30.)

The Appeals Council thereafter denied Plaintiff’s request for

* Plaintiff filed his application for CDB based upon the earnings record of his

deceased father. (See Tr. 85, 100, 101, 115, 184.) To qualify for CDB,

Plaintiff must, at the time of application, demonstrate that he 1) remains

unmarried, 2) qualified as a dependent of his father at the time of his death,

and 3) either has not attained the age of 18 or has attained the age of 18 and

remains under a disability which began before Plaintiff attained the age of 22.

See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a) (5). Plaintiff filed his CDB

application on March 26, 2018, shortly after attaining the age of 18 (see Tr. 17,

28, 184), and the ALJ adjudicated Plaintiff’s CDB claim before Plaintiff attained

the age of 22 (see Tr. 30). Thus, to qualify for CDB, Plaintiff must, at a

minimum, show that he remained disabled as of March 26, 2018, the protective

filing date of his CDB application. See Smolen v. Chater, 80 F.3d 1273, 1280

(9th Cir. 1996) (holding that CDB “claimant must be disabled continuously and

without interruption beginning before her twenty-second birthday until the time

she applied for [CDB]”). The standards for demonstrating disability in a CDB

claim match those of claims for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”). See 42 U.S.C. § 402(d) (providing that 42

U.S.C. § 423(d) supplies applicable definition of “disability” for CDB claims);

42 U.S.C. § 423(d) (1) (A) (setting forth standard definition of “disability” for

DIB claims, i.e., “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”); 42 U.S.C. § 1382c (a) (3) (A)

(describing same standard of disability for SSI claims); see also Craig v.

Chater, 76 F.3d 585, 589 n.1l (4th Cir. 1996) (“[DIB] provides benefits to

disabled persons who have contributed to the program while employed. [SST]

provides benefits to indigent disabled persons. The statutory definitions and

the regulations . . . for determining disability governing these two programs are

. . . Substantively identical.” (internal citations omitted)).

review (Tr. 1-7, 181-82, 425-29), thereby making the ALJ’s ruling

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

In rendering that disability determination, the ALJ made the

following findings:

1. . . . [Plaintiff] had not attained age 22 as of

January 28, 2000, the alleged onset date.

2. [Plaintiff] has not engaged in substantial gainful

activity since January 28, 2000, the alleged onset date.

. . .

3. [Plaintiff] has the following severe impairments:

personality disorders; obstructive sleep apnea; major

depressive disorder, recurrent episode, moderate;

attention deficit hyperactivity disorder (ADHD),

predominantly inattentive presentation; disruptive mood

dysregulation disorder, unspecified; post-traumatic

stress disorder (PTSD); and autism spectrum disorder.

. . .

4. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1.

. . .

5. . . . [Plaintiff] has the residual functional

capacity to perform a full range of work at all

exertional levels but with the following nonexertional

limitations: understand, remember, and carry out very

short simple instructions; can frequently interact

appropriately with the general public, supervisors, co-

workers, or peers during an eight hour workday;

frequently respond to changes in a workplace setting

during an eight hour work day; can maintain concentration

for two-hour segments over the course of an eight hour

workday; and he cannot perform work that requires quotas

or production levels; and any time off task can be

accommodated by normal breaks.

. . .

3

6. [Plaintiff] has no past relevant work.

. . .

10. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there are

jobs that exist in significant numbers in the national

economy that [he] can perform.

. . .

11. [Plaintiff] has not been under a disability, as

defined in the . . . Act, from January 28, 2000, through

the date of this decision.

(Tr. 19-29 (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 [the Court’s] review of [such a] decision . . . is extremely

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

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

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,

the Court “must uphold the factual findings of the ALJ 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

4

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, 401 (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) (brackets and internal

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 Commissioner].” Mastro, 270 F.3d at 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

[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).

5

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)). “To regularize the

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

has . . . 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.

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 the Soc. Sec. Admin., 174 F.3d 473, 475

6

n.2 (4th Cir. 1999).3 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).

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 179.4 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. See id. at

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

3 “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

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

4 “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

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 claimant’s 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 Commissioner cannot carry its “evidentiary

burden of proving that [the claimant] remains able to work other

jobs available in the community,” the claimant qualifies as

disabled. Hines, 453 F.3d at 567.5

B. Assignment of Error

In Plaintiff’s first and only assignment of error, he asserts

that “[t]he [ALJ] erred by failing to perform a proper function-by-

function evaluation of all [Plaintiff]’s contested and relevant

limitations and provide a logical bridge linking the evidence in

the record to [the ALJ’s] conclusions.” (Docket Entry 14 at 6

(bold font and single-spacing omitted).)6 In particular, Plaintiff

5 A claimant thus can establish disability 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.”).

6 Plaintiff “contends that the ALJ’s conclusion that [Plaintiff] could perform

the jobs of Automobile Detailer, Inspector and Hand Packager[,] and Document

Preparer . . . is erroneous[, because those] jobs require a General Education

Development [] Level Reasoning [(‘RDL’)] of 2, 2 and 3, respectively” (Docket

Entry 14 at 5 n.2), but the ALJ limited [Plaintiff] to tasks involving ‘very

short, simple instructions’” (id. (quoting Tr. 22)). Plaintiff points out that

the United States Court of Appeals for the Fourth Circuit has “held that an

apparent conflict existed between a ‘limitation to short, simple instructions’

(continued...)

8

maintains that “the ALJ’s failure to conduct the proper function-

by-function analysis required by [Social Security Ruling 96-8p,

Policy Interpretation Ruling Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, 1996 WL 374184 (July 2,

1996) (“SSR 96-8p”),] resulted in a failure to include limitations

to account for unscheduled absenteeism a[nd] breaks in addition to

normal breaks allowed in competitive work,” as well as “limitations

in interacting with others and . . . tolerat[ing] changes and

stress in the workplace.” (Id. at 10.) In that regard, Plaintiff

faults the ALJ for (1) “failfing] to consider . . . [Plaintiff’s]

qualifying statements regarding his activities, including his

attempt to work” (id. at 10-11), (2) “‘cherrypick[ing] facts that

support[ed] a finding of nondisability while ignoring evidence that

point[ed] to a disability finding’” (id. at 15 (quoting Lewis v.

(...continued)

and a need to carry out ‘detailed but uninvolved .. . instructions’ as found in

jobs requiring [RDL] 2.” (Id. at 5-6 n.2 (citing Thomas v. Berryhill, 916 F.3d

307, 313-14 (4th Cir. 2019)); see also id. at 6 (citing Lawrence v. Saul, 941

F.3d 140, 143 (4th Cir. 2019), for proposition “that a limitation to ‘short’

instructions was inconsistent with the concept of ‘detailed but uninvolved

instructions’ in [RDL] 2 because detail and length are highly correlated”).) The

ALJ erred by failing to identify and resolve the apparent conflict, as recognized

in Thomas and Lawrence, between the VE’s testimony that an individual limited to

“very short simple instructions” could perform the jobs in question (Tr. 77-78)

and the Dictionary of Occupational Titles’s (“DOT”) listing of those jobs at RDL

2 and 3, see DOT, No. 915.687-034 (“Automobile Detailer”), 1991 WL 687878 (G.P.0O.

4th ed. rev. 1991), DOT, No. 559.687-074 (“Inspector and Hand Packager”), 1991

WL 683797, and DOT, No. 249.587-018 (“Document Preparer, Microfilming”), 1991 WL

672349. The ALJ’s error in that regard, however, qualifies as harmless, as the

DOT rates the three remaining jobs cited by the VE and adopted by the ALJ at step

five of the SEP (see Tr. 29, 78-79) at RDL 1, which requires a worker to “[alpply

commonsense understanding to carry out simple one- or two-step instructions,”

DOT, No. 713.687-018 (“Final Assembler”), 1991 WL 679271, DOT, No. 381.687-034

(“Waxer, Floor”), 1991 WL 673262, DOT, No. 323.687-014 (“Cleaner, Housekeeping”),

1991 WL 672783.

Berryhill, 858 F.3d 858, 869 (4th Cir. 2017))), and (3) “fail[ing]

to reconcile the conflict between [the ALJ’s] RFC conclusions and

the opinion evidence she found persuasive” (id. at 17 (citing Tr.

27)). Plaintiff deems those errors by the ALJ “harmful,” because

“the VE testified that[,] if [Plaintiff] were restricted to less

than occasional contact with co-workers[,] . . . could not tolerate

changes in the work environment . . . on at least an occasional

basis[,] . . . required a bathroom or other break approximately 10

minutes of every hour[,] or was absent in excess of one day a

month[,] competitive work would [] be precluded.” (Id. at 19

(citing Tr. 81-84).) Those contentions fail to warrant relief.

RFC measures the most a claimant can do despite any physical

and mental limitations. Hines, 453 F.3d at 562; 20 C.F.R.

§ 404.1545(a). An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s

impairments, as well as any related symptoms, including pain. See

Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b). The ALJ then

must match the claimant’s exertional abilities to an appropriate

level of work (i.e., sedentary, light, medium, heavy, or very

heavy). See 20 C.F.R. § 404.1567. Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an

exertional level. See 20 C.F.R. § 404.1569a(c).

“The RFC assessment must include a narrative discussion

describing how the evidence supports each conclusion, citing

10

specific medical facts (e.g., laboratory findings) and nonmedical

evidence (e.g., daily activities, observations). . . . The [ALJ]

must also explain how any material inconsistencies or ambiguities

in the evidence in the case record were considered and resolved.”

SSR 96-8p, 1996 WL 374184, at *7. Although the ALJ need not

discuss every piece of evidence in making an RFC determination, see

Reid v. Commissioner of Soc. Sec., 769 F.3d 861, 865 (4th Cir.

2014), he or she “must both identify evidence that supports his [or

her] conclusion and build an accurate and logical bridge from that

evidence to [that] conclusion,” Woods v. Berryhill, 888 F.3d 686,

694 (4th Cir. 2018) (internal emphasis, quotation marks, and

brackets omitted). As to the role of the function-by-function

analysis in that determination, the relevant administrative ruling

states: “The 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 addressed this administrative ruling

and the issue of whether an ALJ’s failure to articulate a

function-by-function analysis necessitates remand. See Mascio v.

Colvin, 780 F.3d 632, 636–37 (4th Cir. 2015). Specifically, it

stated “that a per se rule is inappropriate given that remand would

11

prove futile in cases where the ALJ does not discuss functions that

are irrelevant or uncontested,” id. at 636, but that “‘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,’” id. (internal brackets and ellipsis

omitted) (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.

2013)).

Here, the ALJ did not perform an express function-by-function

analysis of Plaintiff’s work-related abilities (see Tr. 22-28);

however, no basis for remand exists because, for the reasons

explained more fully below, the ALJ’s decision nevertheless

supplies the necessary “accurate and logical bridge,” Woods, 888

F.3d at 694 (internal quotation marks omitted), between the

evidence and her findings that Plaintiff’s (A) mental impairments

qualified as “severe” (Tr. 19) but (B) did not cause limitations

greater than those reflected in the mental RFC (see Tr. 22).

a. Qualifying Statements

Plaintiff first faults the ALJ for “fail[ing] to

consider . . . [Plaintiff’s] qualifying statements regarding his

activities, including his attempt to work.” (Docket Entry 14 at

10-11; see also id. at 14 (citing Woods, 888 F.3d at 694-95, for

the proposition that “[a]n ALJ may not consider the type of

activities the claimant can perform without also considering the

12

extent to which []he can perform them”).) In that regard,

Plaintiff objects to the ALJ’s observation that Plaintiff “‘was

able to work for three months’” (id. at 11 (quoting Tr. 26)),

because the ALJ “fail[ed] to note . . . that [Plaintiff] never

performed this job on a full-time basis[,] . . . [and] fail[ed] to

take notice of the fact that [Plaintiff] received the services of

a job coach” (id. (citing Social Security Ruling 85-16, Titles II

and XVI: Residual Functional Capacity for Mental Impairments, 1985

WL 56855, at *4 (1985) (“SSR 85-16”) (providing that “[i]nformation

concerning an individual’s performance in any work setting

(including sheltered work and volunteer or competitive work), as

well as the circumstances surrounding the termination of the work

effort, may be pertinent in assessing the individual’s ability to

function in a competitive work environment”))). According to

Plaintiff, “the job coach appear[ed] to have facilitated

communication with [Plaintiff’s] supervisor, resolved

misunderstandings, assisted [Plaintiff] with learning new tasks,

reminded him to pace himself when he became overwhelmed, [and]

educated him on finding appropriate equipment and/or asking

questions or for assistance during his attempt at employment.”

(Id. at 12-13 (internal parenthetical citations omitted) (citing

Tr. 976-79).) Plaintiff additionally points to his testimony “that

he stopped going to work as a result of his mental impairments and

related symptoms and resigned from his job prior to being ‘let go’

13

for his performance and attendance issues” as undermining the ALJ's

reliance on Plaintiff’s work activity. (Id. at 13-14 (citing Tr.

47-48).) Those arguments miss the mark.

The ALJ here provided the following analysis of Plaintiff’s

work experience through Vocational Rehabilitation (“VR”):

In 2018, [Plaintiff] got involved in [VR] training. A

[VR] Analysis [] indicated [Plaintiff]’s impediments were

difficulty focusing on work tasks, misinterpretation of

oral communication from co-workers, and that he need[ed]

training in small groups or individually. It was noted

that [Plaintiff] wanted to work as a cashier and that he

had sufficient math skills and intelligence to be

successful. In November 2018, it was noted that he was

working part-time at a local distribution center and he

liked the job. Follow-up records in November and

December 2018 indicated [Plaintiff] had a problem with

attendance, tardiness, and excessive breaks at work.

[Plaintiff] reported his transportation had car issues

and on one occasion, he had a cut on his leg and the

bandage kept coming off. It was noted during

observations at work [Plaintiff] represented himself

well. He was noted as doing an outstanding job when

working alone. He also interacted with other workers,

and helped out his fellow coworkers. Even when he

switched jobs to receiving, it was noted he was doing

well. [Plaintiff] reported he enjoyed working.

(Tr. 25-26 (internal parenthetical citations omitted) (emphasis

added).) As the above-quoted passage shows, the ALJ acknowledged

both the part-time basis of Plaintiff’s employment and the fact

that Plaintiff worked with VR to obtain and maintain the job.’

Furthermore, aS shown above, the ALJ recognized both the VR

The VR records reflect that Plaintiff limited himself to part-time work because

his “grandmother [wa]s pursuing disability for him,” which suggests that

Plaintiff avoided applying for full-time jobs because he did not want such work

to disqualify him for benefits. (Tr. 981.)

14

counselor’s positive and negative observations about Plaintiff’s

performance.’

Moreover, although Plaintiff testified that he left work

because of anxiety-induced nausea, vomiting, and diarrhea which

caused him to take excessive bathroom breaks and to miss work (see

Tr. 48, 50-59), the ALJ found Plaintiff’s “statements concerning

the intensity, persistence and limiting effects of [his] symptoms

[] not entirely consistent with the medical evidence and other

evidence in the record” (Tr. 23). Indeed, the VR records do not

support Plaintiff’s testimony regarding frequent on-the-job bouts

of nausea, vomiting, and diarrhea causing excessive bathroom breaks

and absenteeism. Those records reflect that, on one occasion,

Plaintiff took extra breaks to deal with a bandage on his leg (see

Tr. 978), and, on two other occasions, Plaintiff missed work due to

“transportation . . . issues” (Tr. 977) and “appointments,” which

he then adjusted to conform to his work hours (Tr. 980). The

record also does not support Plaintiff’s testimony that his mental

® Plaintiff testified that he worked at the distribution center for approximately

three months, from November 2018 to February 2019. (See Tr. 47.) The record,

however, strongly suggests that Plaintiff began his part-time employment at the

distribution center on or about August 20, 2018 (see Tr. 189 (indicating “DATE

HIRED” as “2018-08-20”); see also Tr. 977 (VR review in November 2018 indicating

Plaintiff received pay raise after working 90 days)) and thus maintained his

employment for over five months. Information in the record regarding Plaintiff’s

earnings in 2018 also indicate that he worked approximately five or more months

at the distribution center. Those records reflect that he worked 12 hours per

week at a pay rate of $14 per hour (see Tr. 976) and that, as of November 20,

2018, he received a pay raise to $14.50 per hour (see Tr. 977 (VR review in

November 2018 indicating Plaintiff received pay raise after working 90 days), 978

(ceflecting pay rate of $14.50 per hour)). As he earned $2,790 in 2018 (see Tr.

186), even taking into account Plaintiff’s $.50 pay raise and a $250 bonus (see

Tr. 978), Plaintiff must have worked at least 15 weeks in 2018 alone.

15

symptoms eventually forced him to resign in lieu of termination

(see Tr. 48, 50) – the VR records do not even mention Plaintiff’s

termination from employment, let alone the reasons therefor (see

Tr. 969-87) and, as the ALJ observed, Plaintiff’s “grandmother

reported [to Plaintiff’s psychiatrist that Plaintiff] was fired

because he stopped going and he complained about the job until he

was let go” (Tr. 26 (citing Tr. 988)).

Moreover, although Plaintiff claims, without citation to the

record, that, “when the job coach reduced her services[,

Plaintiff’s] attendance at work declined” (Docket Entry 14 at 13),

the VR records reflect no such phenomenon. The job coach indicated

she would reduce the frequency of her job visits in connection with

Plaintiff’s job performance review in December 2018 (see Tr. 979),

but she discussed attendance and tardiness issues relating to

Plaintiff’s transportation problems, the bandage on his leg, and

conflicting medical appointments at all three of his performance

reviews (see Tr. 977-78, 980), and the January 2019 review

expressly notes that Plaintiff “had been to work on time and

continue[d] to enjoy working” (Tr. 980 (emphasis added)).

Plaintiff additionally objects to the ALJ’s reliance on

Plaintiff’s report to his psychiatrist “‘that he was working on

getting his [drivers] license and studying for it’” to discount

Plaintiff’s subjective symptom reports (Docket Entry 14 at 14

(quoting Tr. 26, and citing Tr. 988)), noting that Plaintiff made

16

that report on June 17, 2019, and that, “as of the date of his

hearing – August 29, 2019 – [he] did not report any progress

towards getting his license . . . because he was ‘afraid to get

behind the wheel’” (id. (quoting Tr. 68)). Plaintiff also disputes

“the ALJ[’s] conclu[sion] that [Plaintiff’s] report in April 2018

that he would like to get a job somewhere after graduating high

school undermined his allegations regarding the severity of his

symptoms.” (Id. at 15 (citing Tr. 26, and referencing Tr. 872).)

In Plaintiff’s view, “the ALJ ignore[d] the evidence regarding the

actual extent to which [Plaintiff] followed through with his

reported desires” regarding obtaining his drivers license and a

job. (Id.)

The ALJ did not “ignore[] the evidence regarding the actual

extent to which [Plaintiff] followed through with his reported

desire[]” (id.) to obtain his drivers license, because the ALJ

merely (and accurately) noted Plaintiff’s stated goal to obtain the

license, as well as his report that he had begun studying to

accomplish that goal, and did not find that Plaintiff actually

obtained his driver’s license. (See Tr. 26; see also Tr. 988.)

Moreover, Plaintiff’s interest in obtaining his license and his

ability to take steps towards achieving that goal, i.e., studying,

have some tendency to undermine Plaintiff’s allegations of

disabling mental symptoms. In the same vein, the ALJ did not

“ignore[] the evidence regarding the actual extent to which

17

[Plaintiff] followed through with his reported desire[]” (id.) to

obtain a job because, as discussed above, the ALJ adequately

acknowledged the part-time nature of the job, the fact that VR

assisted Plaintiff with obtaining and maintaining the job, that

Plaintiff received both negative and positive feedback on his

performance, and that Plaintiff ultimately left the job after a few

months. (See Tr. 25-26.)

In short, Plaintiff simply has not shown that the ALJ failed

to sufficiently consider Plaintiff’s qualifying statements

regarding his work and other activities.

b. Cherry-Picking

Plaintiff next challenges the ALJ for “‘cherrypick[ing] facts

that support[ed] a finding of nondisability while ignoring evidence

that point[ed] to a disability finding.’” (Docket Entry 14 at 15

(quoting Lewis, 858 F.3d at 869).) More specifically, Plaintiff

contends that “the ALJ [sic] reliance on notations in the record,

including the VR records, that [Plaintiff] was enjoying work,

helping out fellow co-workers and representing himself well and

medical records that indicate that he was feeling well, getting

along with this [sic] grandmother, denied mood disturbances and

aggressive outbursts, etc[.] to support [the ALJ’s] conclusion that

[Plaintiff’s] allegations were not consistent with the record [wa]s

[] misplaced” (id. (internal parenthetical citations omitted)

18

(citing Tr. 26)) and “taken out of context” (id. at 17). Those

contentions fall short.

Plaintiff first critiques the ALJ’s reliance on the VR

counselor’s observations that Plaintiff “represented himself well,”

“was noted as doing an outstanding job when working alone,” “helped

out his fellow coworkers,” and continued to “do[] well” even after

“switch[ing] jobs” (id. at 16 (referencing Tr. 26, and citing Tr.

977)), because the ALJ “fail[ed] to note that the rest of th[at]

record also reflects that the job coach was present supporting

[Plaintiff] by demonstrating the job tasks, reminding him to pace

himself and ‘comforting him’ when he was sweating a lot and getting

incoherent” (id. (citing Tr. 977)). To begin, the ALJ need not

discuss every piece of evidence in making an RFC determination, see

Reid, 769 F.3d at 865, and, as discussed above, the ALJ

sufficiently recognized and discussed VR’s involvement in

Plaintiff’s employment as well as both the positive and negative

observations of the VR counselor regarding Plaintiff’s work

performance at the distribution center.

Next, Plaintiff contests the ALJ’s discussion of 2018

treatment records “reveal[ing] that [Plaintiff] did not report

severe mood disturbance or aggressive outbursts and that he was

generally feeling well,” because “th[o]se records also reflect that

[he] was no longer in high school” (Docket Entry 14 at 16

(referencing Tr. 26, and citing Tr. 870, 872)), and Plaintiff

19

“testified that he experienced similar difficulties when attending

school with those he suffered when attempting to work” (id. (citing

Tr. 54)). Plaintiff’s attempt to lessen the significance of his

largely normal findings on mental status examinations in April and

July 2018 because he “was no longer in high school” (id.) does not

hold up. At a visit to Plaintiff’s psychiatrist on November 19,

2018, after Plaintiff had already worked at the distribution center

for approximately 90 days (see Tr. 189, 977), Plaintiff advised

that he “like[d] the job[,] . . . [wa]s not having any problems

with mood lability, agitation, aggression, [or] extreme distress,

[and wa]s sleeping well and . . . functioning well [] all through

the day” (Tr. 882). Plaintiff’s psychiatrist noted that Plaintiff

displayed “good eye contact,” while remaining “respectful” and

“polite and engaged” with normal speech and thoughts. (Id.)

Plaintiff additionally takes issue with the ALJ’s “repeated[]

mentions [of Plaintiff’s] ability to play video games,” because the

ALJ “d[id] not explain how [playing video games] undermine[d]

[Plaintiff’s] allegations regarding his mental health related

symptoms and limitations.” (Docket Entry 14 at 16 (referencing Tr.

26).) In that same regard, Plaintiff faults the ALJ for noting

that Plaintiff could “‘play video games and spend the night with

friends sometimes’ but fail[ing] to note that in the same record

[he] presented for discharge follow-up after an involuntary

commitment from November 7[] through [] 12, 2016 due to suicidal

20

behaviors and a fear of hurting himself or others” (id.

(referencing Tr. 26, and citing Tr. 584-85)) and displayed “poor

eye contact, agitation, disrupted mood, flat and withdrawn affect,

[and] impaired concentration and focus” (id. (citing Tr. 908-19)).

As an initial matter, Plaintiff’s ability to play video games

bears upon his ability to maintain focus and concentration, see

Luke W. v. Saul, No. 6:19CV58, 2021 WL 1132598, at *4 (W.D. Va.

Mar. 24, 2021) (unpublished) (finding no error in ALJ’s finding

that playing video games “require[s] some level of concentration”

(emphasis omitted)); Bowcott v. Berryhill, No. 3:17CV2329, 2018 WL

4583617, at *5 (S.D.W. Va. Sept. 25, 2018) (unpublished)

(determining that ALJ’s reliance on the plaintiff’s ability to play

video games “support[ed] the [ALJ’s] finding that [the plaintiff]

ha[d] the capacity to maintain concentration, persistence, and

pace” (internal quotation marks omitted)); Harris v. Berryhill, No.

1:16CV140, 2017 WL 1755968, at *5 (M.D.N.C. May 4, 2017)

(unpublished) (“[T]he ALJ noted that [the p]laintiff remained able

to engage in various daily activities, such as playing video

games, . . . which require the ability to focus and concentrate to

some degree.”), recommendation adopted, slip op. (M.D.N.C. May 25,

2017) (Biggs, J.); Smith v. Colvin, No. 2:13CV37, 2014 WL 4322323,

at *5 (E.D.N.C. Aug. 7, 2014) (unpublished) (holding that the

plaintiff’s ability to “use a computer[] and play video games[]

indicat[ed] that [he] could focus on tasks to the extent necessary

21

to hold a job”), recommendation adopted, 2014 WL 4352338 (E.D.N.C.

Sept. 2, 2014) (unpublished), an area in which Plaintiff has

alleged difficulty (see Tr. 73, 248; see also Tr. 240 (Function

Report completed by Plaintiff’s grandmother indicating Plaintiff

had problems concentrating)). As such, the ALJ did not err by

relying, in part, on Plaintiff’s ability to play such games in

discounting Plaintiff’s subjective symptom reporting. (See Tr.

26.)

Moreover, Plaintiff glosses over the fact that the ALJ

expressly discussed Plaintiff’s inpatient hospitalization in

November 2016:

At the age of 16, . . . [Plaintiff] had an inpatient

hospitalization at Old Vineyard Behavioral Health

Services for fear of hurting himself and other people.

It was noted that he was feeling stressed after red

ribbon week and overwhelmed due t[o ]his past history of

being in foster care due to his mother’s drug abuse and

incarceration. [Plaintiff] reported feeling unsafe to be

home and wanted to be in a hospital setting for further

stabilization. He complained of racing thoughts,

pressured speech, and suicidal behaviors. [He] was

admitted to the adolescent unit and placed on suicide

precautions. He was treated with Lexapro, Intuniv,

Buspar, and Abilify. Initially, he was extremely anxious

and preoccupied with wanting to go home and minimizing

the extent of his difficulties. He also had problems

with attention and concentration. Accordingly, his

medication had to be adjusted. After adjustment, [he]

became more cooperative, complaint [sic] and engagable

[sic] in his treatment work. He tolerated medications

well without side effects. He denied any suicidal or

homicidal thoughts at least 24 hours prior to discharge.

He was advised to follow up with Daymark Recovery

Services.

22

(Tr. 25 (internal parenthetical citation omitted).) Although the

ALJ did not expressly mention Plaintiff’s clinical assessment by a

counselor at Daymark on November 21, 2016 (see Tr. 25) relied on by

Plaintiff (see Docket Entry 14 at 16 (citing Tr. 908-19)), the ALJ

did discuss Plaintiff’s follow-up visit with his psychiatrist at

Daymark on the same date, noting that the visit “indicated that[,]

since [Plaintiff’s] hospitalization[, he] reported he felt safe and

was no longer thinking of his childhood trauma” (Tr. 25 (citing Tr.

663)).

In sum, Plaintiff has not demonstrated that the ALJ improperly

cherry-picked the evidence of record in determining the RFC.

c. Conflicts Between Opinion Evidence and RFC

Lastly, Plaintiff maintains that the ALJ “fail[ed] to

reconcile the conflict between her RFC conclusions and the opinion

evidence she found persuasive.” (Docket Entry 14 at 17 (citing Tr.

27).) In particular, Plaintiff argues that the ALJ found the

opinions of the initial-level state agency psychological consultant

persuasive, but then failed to either incorporate that consultant’s

limitations to a “low social setting” and a “‘stable work

assignment’” into the RFC or to explain why the ALJ did not do so.

(Id. at 18 (citing and quoting Tr. 97).) That argument ultimately

lacks merit.9

9 Plaintiff additionally complains that “the ALJ concluded that [Plaintiff] ha[d]

a ‘mild limitation’ in understanding, remembering, or applying information” at

step three of the SEP (Docket Entry 14 at 17 (quoting Tr. 21)), but yet found

(continued...)

23

The ALJ provided the following analysis of the persuasiveness

of the state agency psychological consultants’ opinions:

The [s]Jtate agency psychological consultant at the

initial level opined that [Plaintiff] could understand

and remember simple instructions; he could maintain

attention and concentration for two-hour periods over an

eight-hour day in order to carry out simple tasks; he can

accept instructions from supervisors and interact

appropriately with the public and coworkers in a low

social setting; he would be slow to adapt to change but

can function with a stable work assignment; and he could

be aware of hazards, negotiate transportation to work,

and plan for simple tasks. The [s]tate agency consultant

at the reconsideration level opined that [Plaintiff]

could understand and remember more than simple

instructions; he could maintain attention and

concentration for two-hour periods over an eight-hour day

in order to carry out more than simple tasks; he can

accept instructions from supervisors and interact

appropriately with the public and coworkers in a low

social setting. The [ALJ] finds the opinion of the

[s]ltate agency psychological consultant at the initial

level persuasive and the opinion of the [s]tate agency

consultant at the reconsideration level not persuasive

because the [s]tate agency opinion at the initial level

is supported by the record. The record showed

[Plaintiff] has a history of autism spectrum disorder,

and depression/mood disorder. He was placed on an

[Individualized Education Plan (“IEP”)] for specific

learning disorder but his full scale IQ was 109,

indicating average intelligence and he also score [sic]

in the low average to superior range in all other

° (...continued)

“persuasive” the initial-level state agency psychological consultant’s opinions

(id. (citing Tr. 27)), which included a “moderate limitation in this area” (id.

(citing Tr. 92)). That contention fails for two reasons. First, the ALJ did not

specifically credit the consultant’s opinions regarding Plaintiff’s degree of

limitation in the paragraph B criteria of the mental listings (see Tr. 21

(containing ALJ’s rationale for finding a mild limitation in understanding,

remembering, or applying information and lacking any reference to consultant’s

opinion)); instead, the ALJ explained that she found “persuasive” the

consultant’s mental RFC findings (see Tr. 27). Second, even if the ALJ had erred

by not finding Plaintiff moderately limited in that area, Plaintiff has not shown

how such error prejudiced her. A moderate limitation falls below listing level

severity, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1, §$S 12.04B, 12.06B, 12.08B,

12.10B, 12.11B, 12.15B, and the ALJ already included a limitation to “very short

simple instructions” in the RFC (see Tr. 22).

24

intelligence categories. He has had a history of

multiple inpatient hospitalizations for suicidal ideation

and rage, but his last hospitalization was three years

ago. Most recent treatment records indicated [Plaintiff]

had stable mood with medication. He was alert and

oriented to person, place, time, and situation. He had

flat affect, depressed mood, and minimal eye contact, but

he denied suicidal and homicidal ideation. He endorsed

feelings of low self-confidence and low self-worth but he

had no delusions, psychosis, or auditory visual

hallucinations.

(Tr. 27 (internal parenthetical citations omitted) (emphasis

added).) The ALJ concluded her RFC evaluation by stating that, “to

accommodate [Plaintiff]’s mental disorders, the [RFC] limits him to

simple tasks with no quota or production work, frequent social

interaction, frequent workplace changes, and maintaining attention

and concentration for two-hour increments over an eight-hour

workday” and observing that the RFC “[wa]ls consistent with the

opinion of the [s]tate agency psychological consultant at the

initial level who also found [Plaintiff] had the same mental

limitations.” (Tr. 28 (emphasis added) .)

The SSA has adopted the Dictionary of Occupational Titles’s

definition of “frequent,” see 20 C.F.R. § 404.1567, which means

occurring from one-third to two-thirds of an eight-hour workday,

see Dictionary of Occupational Titles (“DOT”), App’x C (“Components

of the Definition Trailer”), § IV, 1991 WL 688702 (4th ed. rev.

1991) (emphasis added). Accordingly, the ALJ’s RFC limitations to

“frequent social interaction” and “frequent workplace changes” (Tr.

28 (emphasis added); see also Tr. 22), exposing Plaintiff to on-

25

the-job interaction with co-workers, supervisors, and the general

public and to changes in his work environment for up to two-thirds

of an eight-hour workday, conflict with the initial-level state

agency psychological consultant’s limitations to a “low social

setting” and a “stable work assignment” (see Tr. 97). See Crisco

v. Kijakazi, No. 1:20CV239, 2021 WL 4414155, at *6 (M.D.N.C. Sept.

27, 2021) (unpublished) (Osteen, J.) (finding that ALJ’s

restriction to “no more than occasional interaction with coworkers

and supervisors[]” . . . account[ed] for the [state agency

psychological] consultants’ limitation to “a . . . low social

setting” (emphasis added)).

The ALJ’s error in that regard, however, qualifies as harmless

under the circumstances presented here. See generally Fisher v.

Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]Jo

principle of administrative law or common sense requires us to

remand a case in quest of a perfect opinion unless there is reason

to believe that the remand might lead to a different result”). As

the Commissioner argues, “two of the jobs the ALJ ultimately found

Plaintiff able to perform - Floor Worker, [DOT No.] 381.687-034,

1991 WL 673262 and Housekeeper, [DOT No.] 323.687-014, 1991 WL

672783 - have a ‘People’ rating of 8 in the [DOT], meaning that

‘Taking Instructions - Helping’ is ‘Not Significant’” and

“Yreflect[s] the lowest possible level of human interaction that

exists in the labor force.’” (Docket Entry 16 at 12 (quoting

26

Fletcher v. Colvin, No. 1:15CV166, 2016 WL 915196, at *10 (M.D.N.C.

Mar. 4, 2016) (unpublished), recommendation adopted, slip op.

(M.D.N.C. Mar. 28, 2016) (Osteen, C.J.)).) Similarly, the

Commissioner points out “that those [same] jobs require a [General

Educational Development (‘GED’)] level of 1,” which “involve[s]

dealing with standardized situations with occasional or no

variables in or from these situations encountered on the job.”

(Id. at 13 (emphasis supplied by the Commissioner) (citing DOT, No.

381.687-034 (“Floor Worker”), 1991 WL 673262, and DOT, No. 323.687-

014 (“Housekeeper”), 1991 WL 672783).) Moreover, the VE testified

(and the ALJ found) that more than 1.7 million Floor Worker and

Housekeeper jobs existed in the national economy (see Tr. 29, 78),

which clearly represents a significant number of jobs under Fourth

Circuit precedent, see Hicks v. Califano, 600 F.2d 1048, 1051 (4th

Cir. 1979) (“We do not think that the approximately 110 jobs

testified to by the [VE] constitute an insignificant number.”).

Consequently, Plaintiff has not shown that remand for the ALJ

to include limitations to accommodate a low social setting and a

stable work assignment in the RFC would result in a different

outcome in his case. See Wilson v. Saul, No. 1:19CV1089, 2020 WL

6293132, at *4 (M.D.N.C. Oct. 27, 2020) (“[E]ven assuming the ALJ

erred here by failing to include additional social limitations in

the RFC . . ., any error would be harmless because the jobs the ALJ

concluded that [the p]laintiff could perform do not require

27

significant social interactions.”), recommendation adopted, slip

op. (M.D.N.C. Nov. 24, 2020) (Biggs, J.); Knott v. Colvin, No.

1:13CV332, 2014 WL 2453302, at *6 (M.D.N.C. June 2, 2014)

(unpublished) (Schroeder, J.) (deeming ALJ’s failure to include any

interaction limitations in RFC to account for state agency

psychological consultant’s opinion (to which ALJ accorded great

weight) that Plaintiff required work in a “low social setting”

harmless error, because two of three jobs cited by VE and adopted

by ALJ at step five of the SEP “d[id] not require a high degree of

social interaction” (citing DOT, No. 209.587–034 (“Marker”), 1991

WL 671802, and DOT, No. 207.685–014 (“Photocopying–Machine

Operator”), 1991 WL 671745)); see also Farnsworth v. Astrue, 604 F.

Supp. 2d 828, 858 (N.D.W. Va. 2009) (ruling ALJ’s failure to

include limitation in hypothetical question to VE constituted

harmless error where “no evidence [existed] th[at] inclusion of the

limitation . . . would have resulted in a different finding by the

ALJ regarding the availability of jobs in the national economy”).

In light of the foregoing reasons, Plaintiff’s first and only

issue on review fails as a matter of law.

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

28

Judgment on the Pleadings (Docket Entry 13) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 15)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 26, 2022

29