# CHAFFINS v. KIJAKAZI

> District Court, M.D. North Carolina · May 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10254050

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254050

## How later opinions describe it (automated extraction)

- 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”
- holding that CDB “claimant must be disabled continuously and without interruption beginning before her twenty-second birthday until the time she applied for [CDB]”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254050. Public record. Not legal advice.