The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL WRENN KOLBERG, )
Plaintiff,
v. 1:20CV560
KILOLO KIJAKAZI,
Acting Commissioner of Social Security, )
Defendant.
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE [JUDGE
Plaintiff Michael Kolberg (‘Plaintiff’) brought this action pursuant to Section
1631(¢)(3) of the Social Security Act (the “Act’’), as amended (42 U.S.C. § 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying his claim for
Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have filed
ctoss-motions for judgment, and the administrative record has been certified to the Court for
review.
I. PROCEDURAL HISTORY
Plaintiff received Child Supplemental Security Income until July 1, 2017, at which point
the Social Security Administration (“SSA”) redetermined his disability status as an adult and
terminated his benefits. (Tr. at 14.)! Following an unsuccessful reconsideration hearing before
a State agency Disability Heating Officer (Ir. at 17, 110-24), Plaintiff requested an
1 Transcript citations refer to the Sealed Administrative Record [Doc. #9].
administrative hearing de novo before an Administrative Law Judge (“ALJ”) (Tr. at 125-26).
On May 10, 2019, Plaintiff, along with his attorney, attended the subsequent video hearing,
during which Plaintiff, his father, and an impartial vocational expert testified. (Tr. at 17.) The
AL] ultimately concluded that Plaintiff was no longer disabled within the meaning of the Act
(Tr. at 27), and, on April 17, 2020, the Appeals Council denied Plaintiffs request for review
of the decision, thereby making the ALJ’s conclusion the Commissionet’s final decision for
purposes of judicial review (Ir. at 3-8).
IL. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision ... is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there 1s
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 court should not undertake to te-weigh
conflicting evidence, make credibility determinations, or substitute its jadgment for that of the
[ALJ].” 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 ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing 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
teached based upon a cottect application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“fal claimant for disability benefits bears the burden of proving a disability.” Hall v. Hatris,
658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means the ““tnability to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impaitment which can be expected to result in death or which has lasted or can be expected
to last for a continuous petiod of not less than 12 months.” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A))-
2 The Social Security Act comprises two disability benefits programs. ‘The Social Security Disability Insurance
Program ... ptovides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
“The Commissioner uses a five-step ptocess to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F-R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation 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 two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at
step three, ie., “[i]fa claimant’s impairment is not sufficiently severe to equal or exceed a listed
impairment, the AL] must assess the claimant’s residual function[{al] capacity (RFC’).” Id. at
179.3 Step four then requires the AL] to assess whether, based on that RFC, the claimant can
> “RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC 1s an assessment of an tndividual’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 ts to be
“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, 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 Government cannot catty 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.
Ul. DISCUSSION
In the present case, the first step regarding “substantial gainful activity” is modified for
redetermination cases, and the ALJ found that Plaintiff satisfied the first step of the sequential
evaluation process because Plaintiff had received supplemental security income benefits as a
child in the month prior to turning 18 and was notified of his redetermination undet the rules
for adults. (T'r. at 18, 19.) See 20 C.F.R. 416.987(b). At step two, the ALJ further determined
that Plaintiff suffered from the following severe impairments:
learning disorder and attention deficit hyperactivity disorder (ADHD)[.]
determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any
related symptoms (¢,g, pain).” Hines, 453 F.3d at 562-63.
(Tr. at 19.) The ALJ found at step three that neither of these impairments, individually or in
combination, met or equaled a disability listing. (I'r. at 19-22.) Accordingly, the AL] assessed
Plaintiffs RFC and determined that, as of his redetermination date, Plaintiff was able to
perform work at all exertional levels, but with the following, non-exertional limitations:
able to understand, remembet, and carryout simple tasks; no fast-paced
production; work in a low stress job defined as only occasional decision-making
and only occasional changes in the work setting; occasional interaction with
coworkers, supervisors and the public; and limited to occupations that do not
tequite more than very basic math and writing skills equivalent to the third grade
level.
at 22.) At step four of the sequential analysis, the ALJ found that Plaintiff had no past
relevant work. (Tr. at 25.) However, the ALJ found at step five that, given Plaintiffs age,
education, work experience, RFC, and the testimony of the vocational expert as to these
factors, he could perform other jobs available in significant numbers in the national economy.
(Tr. at 26-27.) Therefore, the AL] concluded that Plaintiff was not disabled under the Act.
(Tr. at 27.)
Plaintiff now raises five challenges to the ALJ’s treatment of the opinion evidence.
Specifically, Plaintiff contends that the AL] erred by:
(1) failing to consider and articulate the weight given to the opinion of Plaintiffs
employer, Timothy McArthur, a non-medical soutce; (2) failing to consider and
atticulate the weight given to the opinion of School Psychologist, Marissa
Casper, M.A. P.D, an examining acceptable medical source; (3) failing to
properly evaluate the testimony of Mr. Kolberg’s father, Allen Kolberg, a non-
medical source; (4) failing to properly evaluate the medical opinion of Dr.
Appollo, an examining acceptable medical source; and, (5) by affording great
weight to the medical opinion of Dr. Mullen, the State agency Psychological
Consultant, but not incorporating Dr. Mullen’s opined functional assessment
limitations in the [RFC] and hypotheticals posed to the Vocational Expert.
Br. [Doc. #13] at 11.) After careful consideration of the entire record, the Court finds
that remand is required.
A. Timothy McArthur
Plaintiff first argues that the AL] reversibly erred by failing to mention, consider, or
weigh the questionnaite completed by Plaintiffs employer, Timothy McArthur. Under the
regulations applicable in this case, with respect to opinions from non-medical sources such as
patents, neighbors, and employers, “[t]he adjudicator generally should explain the weight given
to opinions from these soutces or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case.” 20 C.F.R. §
416.927(f)(2) (emphasis added). With respect to this requirement, Social Security Ruling 06-
O3p previously explained that:
Although the factors in 20 CFR 404.1527(d) and 416.927(d) explicitly apply only
to the evaluation of medical opinions from “acceptable medical sources,” these
same factors can be applied to opinion evidence from “other sources.” . . ..
Since there is a requirement to consider all relevant evidence in an individual’s
case tecotd, the case record should reflect the consideration of opinions from
medical sources who ate not “acceptable medical sources” and from “non-
medical sources” who have seen the claimant in their professional capacity.
Although thete is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision,
the adjudicator genetally should explain the weight given to opinions from these
“other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow
the adjudicator’s reasoning, when such opinions may have an effect on the
outcome of the case.
Titles I] & XVI: Considering Opinions & Other Evidence from Sources Who Are Not
“Acceptable Med. Sources” in Disability Claims; Considering Decisions on Disability by Other
Governmental & Nongovernmental Agencies, SSR 06-03p, 2006 WL 2329939, at *4, *6 (Aug.
9, 2006).*
In the present case, Plaintiff was working part-time with family friend Timothy
McArthur at Moe’s Southwest Grill, cleaning tables and washing dishes. (T'r. at 39, 45-46, 55,
58, 61.) Mr. McArthur completed a Work Activity Questionnaire (Tr. at 293-96) reflecting
that he served as Genetal Manager of Moe’s Southwest Grill, where Plaintiff had worked 20
hours per week since August 2018. (Tr. at 294, 296.) He further indicated that Plaintiff was
able to complete all his job duties, but that Plaintiff was not able to complete his work in the
same amount of time as employees in similar positions, that Plaintiff was held to “lower
production standards” than other employees, and that Plaintiff received “extra
help/supervision.” (Tr. at 294.) Mr. McArthur estimated that Plaintiff's productivity level
was about 60 percent of other employees in similar positions. (T'r. at 295.) Mr. McArthur
further explained that Plaintiff was hired based on Mr. McArthut’s personal relationship with
Plaintiffs family as a “long time family friend.” (Tr. at 295.) At the hearing, Plaintiffs father
testified that he had approached Mr. McArthur regarding Plaintiffs difficulties and Mr.
McArthur agreed to “help him out.” (I'r. at 55.)
“The Court notes that on March 27, 2017, SSR 06-3p was rescinded in connection with the new regulations
applicable to claims filed on or after March 27, 2017. See Rescission of Social Security Rulings, 82 Fed. Reg.
15263-01, 2017 WL 1105348 (Mar. 27, 2017); Revisions to Rules Regarding the Evaluation of Medical Evidence,
82 Fed. Reg. 5844-01 at 5854-55, 2017 WL 168819 (“Under SSR 06-03p, we consider opinions from medical
sources who ate not AMSs and from nonmedical sources using the same factors we use to evaluate medical
opinions from AMSs. We state that an adjudicator generally should explain the weight given to opinions from
these sources, or otherwise ensure that the discussion of the evidence in the determination or decision allows
an individual or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an
effect on the outcome of the case. In addition, when an adjudicator determines that an opinion from one of
these sources is entitled to greater weight than a medical opinion from a treating source, the adjudicator must
explain the reasons in the determination or decision if the determination ts less than fully favorable under our
current rules. In these final rules, we have included these policies from SSR 06-03p into final 404.1527 and
416.927 for claims filed before March 27, 2017.”).
At the heating, counsel for Plaintiff identified the importance of Mr. McArthut’s
opinion, specifically citing it as one of the most important pieces of evidence in the case.
Counsel explained:
... [E]ven then at below SGA he’s struggling and this is a family friend who’s
employing him as a general manager. . . a listing is not found based on
12.05 mild intellectual disability we believe that the RFC should also preclude
work on a full-time competitive basis. And again, the strongest evidence is
the fact that he’s currently doing unskilled work and he’s struggling in doing it
according to his manager.
(T'r. at 39-40.)
However, the ALJ did not mention Mr. McArthut’s questionnaire or weigh it in his
decision. Notably, the ALJ repeatedly stated that Plaintiff was employed at a fast-paced
restaurant job with “some accommodations.” (Tr. at 24, 25.) However, the ALJ never
described those accommodations. Moreover, the AL] relied on Plaintiffs ability to work at
the restaurant to (1) reject Plaintiffs allegations of complete disability (I't. at 24), and (2) give
little weight to Dr. Apollo’s opinion reflecting more significant limitations (Tt. at 25).
Nevertheless, despite clearly finding that Plaintiffs restaurant work was material to the
decision, the ALJ never described the accommodations or addressed Mr. McArthut’s
evaluation in any way. Mr. McArthur opined that Plaintiff could only perform at 60 percent
ptoductivity in that position washing dishes and cleaning tables. As noted by Plaintiff in the
briefing, the VE testified that an individual functioning at 60 percent of productivity of a
similarly situated employee would preclude all work. (Tr. at 67.) Given the ALJ’s failure to
weigh or explain his consideration of Mr. McArthur’s evaluation in any way, it is not clear if
the ALJ even considered Mr. McArthut’s opinion, and there is no way for the Court to follow
the AL]’s reasoning. ° Therefore, remand is requited so that the ALJ can consider and analyze
Mr. McArthur’s opinion in the first instance.
B. Marissa Casper
Plaintiff also contends that the AL] failed to properly consider the opinions proffered
by Plaintiffs former school psychologist, Marissa Casper. As with Mr. McArthur’s opinions,
the ALJ failed to expressly mention or weigh Ms. Casper’s opinion evidence in the
administrative decision. Ms. Casper clearly qualifies as an examining, “acceptable medical
soutce.” Such soutces ate entitled to evaluation under the criteria set out in 20 CPR.
416.927(c). Here, however, the ALJ provided no analysis whatsoever and only referenced the
test results obtained by Ms. Casper when summarizing the medical evidence. (Tr. at 23.)
Defendant now argues that the AL]’s omission amounts to, at most, harmless error,
because further consideration of Ms. Casper’s opinion would not alter the ALJ’s RFC
determination. (Def.’s Br. [Doc. #15] at 18-19) (citing Parker v. Berryhill, 733 F. App’x 684,
685 (4th Cir. 2018); ‘Tanner v. Comm’r of Soc. Sec., 602 F. App’x 95, 100 (4th Cir. 2015)).
However, as Plaintiff correctly points out, Ms. Caspet’s recommendations include repeating,
restating, and clarifying instructions as needed, obtaining Plaintiffs attention before providing
° Plaintiff likewise notes that under Social Security guidance:
Regardless of whether the work was SGA, information about how well a young adult performed in
these placements can help us assess how the young adult functions. For example, a young adult who
was unable to sustain OJT placements may have limitations in the ability to understand and remember
instructions or to persist at work-related tasks. In conttast, a young adult who performed OJT
placements successfully may have a good ability to respond appropriately to supervision. In addition,
information about the degree to which a young adult needs special supports in order to work (such
as in supported or transitional employment programs) may also help us assess the young adult's
functioning.
SSR 11-2p: Titles I] and XVI: Documenting and evaluating Disability in Young Adults, SSR 11-2p, 2011
WL 4055665, at *7 (Sept. 12, 2011). Because the AL] did not address the accommodations or Mr.
McArthut’s opinion, the AL] failed to explain his analysis of “the degree to which [Plaintiff] needs special
supports in order to work” but still relied on Plaintiffs work in finding him no longer disabled.
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instructions, pairing auditory information with visual cues when possible, and providing
extended time for assignments. (Tr. at 485.) None of these restrictions find analogs in the
RFC. (See Tr. at 22.) Defendant also contends that Ms. Casper’s recommendations are
inapposite, as they pertain to Plaintiff's school performance rather than his job performance.
(Def.’s Br. at 19.) However, the abilities to understand, follow, and carry out tasks are directly
relevant to Plaintiffs ability to perform basic work activities.© Moreover, the AL] did not
provide the rationale suggested by Defendant as a basis for discounting Ms. Casper’s opined
limitations. As noted in Anderson v. Colvin, this Court’s
[rleview of the AL}’s ruling is limited . . . by the so-called ‘Chenery Doctrine,’
which prohibits courts from considering post hoc tationalizations in defense of
administrative agency decisions. ... Under the doctrine, a reviewing court “must
judge the propriety of [agency] action solely by the grounds invoked by the
agency.... If those grounds ate inadequate or improper, the court is powerless
to affirm the administrative action by substituting what it considers to be a more
adequate or proper basis.”
Anderson v. Colvin, No. 1:10CV671, 2014 WL 1224726, at *1 (M.D.N.C. Mar. 25, 2014)
(quoting Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947)). Accordingly,
remand is appropriate, in order for the AL] to make findings regarding Ms. Casper’s evaluation
in the first instance.
As Plaintiff notes, SSR 11-2p provides that:
... [W]e may have evidence about a young adult's functioning from school programs, including
IEPs. This evidence may indicate how well a young adult can use his or her physical or mental
abilities to perform work activities. The following examples of school-reported difficulties might
indicate difficulty with work activities:
*Difficulty in understanding, remembering, and carrying out simple instructions and work
procedures during a school-sponsored work experience;
Difficulty communicating spontaneously and appropriately in the classroom;
*Difficulty with maintaining attention for extended periods in a classroom;
*Difficulty relating to authority figures and responding appropriately to correction or criticism
during school or a work-study experience;
*Difficulty using motor skills to move from one classroom to another.
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C. Other Opinion Evidence
The AL]J’s treatment of the opinion evidence provided by Plaintiffs father also raises
concetns. In Februaty 2017, Mr. Kolberg completed a third-party function report in which
he indicated that Plaintiffs impairments affect his memory, concentration, and understanding,
as well as his abilities to complete tasks, follow instructions, and get along with others. (I'r. at
202.) In particular, Mr. Kolbetg indicated that Plaintiff could not follow written or spoken
instructions, did not finish what he started, and could only pay attention for a few minutes at
atime. (Tr. at 202.) He also noted that Plaintiff could not handle stress or changes in routine
well and gets upset under pressure. (Tr. at 203.) At Plaintiffs hearing, Mr. Kolberg testified
that Plaintiff required help filling out job applications and required constant supervision and
reminders when looking after his infant daughter, particularly with regard to feeding and diaper
changes. (Tr. at 55, 56-57.) With regard to Plaintiff helping his grandmother, who has stage
four lung cancer, Mr. Kolberg testified that Plaintiff “tries to just make sure that she’s
comfortable, listening to whatever she says, takes out the trash, try [sic] to do some lifting □□□
her, whatever she needs.” (T't. at 58.) Mr. Kolberg also testifies that there was no way Plaintiff
would be able to live on his own. (I't. at 60.)
The ALJ expressly “considered the testimony and thitd party report from [Plaintiff's]
father, Allen Kolberg, [but] afford[ed] them little weight.” (Tr. at 25.) In doing so, the ALJ
explained that
Mt. Kolberg’s testimony is inconsistent with [Plaintiff's] activities of daily living,
which include work activity in a fast pace [sic] restaurant, childcare, and caring
fot his grandmother who is elderly and infirm. The testimony and report are
also inconsistent with the mental status examination conducted by the
consultative examiner.
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(Tr. at 25.)
The ALJ gave similar reasons for rejecting the medical opinion of Consultative
Examiner Dr. Appollo. As summarized by the ALJ,
Dr. Appollo opined that [Plaintiff] would have difficulty in the ability to
understand, retain[,] and follow instructions. Working memory skills fall in the
extremely low range and [Plaintiff] would have difficulty in the ability to sustain
attention over a period to perform tasks. [Plaintiff] can get along with others.
{He has] limited cognitive skills and [a limited] ability to tolerate stress and
ptessure associated with day-to-day work activity.
(Ir. at 25.) The ALJ ultimately accorded “little weight to these opinions.” In doing so, he
asserted that they were
inconsistent with [Plaintiffs] activities of daily living, which include the ability
to perform work activity in a fast-paced setting with accommodations; the
ability to care for his daughter, including changing her diapers, feeding her, and
keeping her safe; and helping to care for his grandmother. The opinions ate
also inconsistent with the lack of medical treatment for ADHD; the treatment
notes from [Plaintiffs] pediatrician notled] that [Plaintiff's] ADHD symptoms
improved with medication. Lastly, the opinions are unsupported by . . . Dr.
Appollo’s own mental status examination, which indicated [Plaintiff] was
pleasant and interactive. His mood and affect were stable; his speech was clear;
[Plaintiff] could follow simple directions; and he could avoid simple physical
danger.
(Tr. at 25.)
Plaintiff now argues that the ALJ mischaracterized his activities of daily living when
using them as a basis for discounting Mr. Kolberg’s testimony and Dr. Appollo’s opinions.
The Court agrees. The AL] used testimony that Plaintiff could perform part-time, non-
competitive work under the close supervision of a family friend, could occasionally care for
his child under the constant supervision of his father and his father’s girlfriend, and could
perform occasional, simple household tasks to assist his grandmother as evidence that
Plaintiff's mental limitations were not as limiting as alleged by Plaintiff and his father.
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However, as the Fourth Circuit explained in Woods v. Berryhill, “[a]n AL] may not consider
the type of activities a claimant can perform without also considering the extent to which she
can perform them.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); see also Lewis v.
Berryhill, 858 F.3d 858, 868, n.3 (4th Cir. 2017) (“The AL] points to Lewis’ ability to perform
incremental activities interrupted by periods of rest, such as ‘driving short distances of up to
30 miles, shop for groceries with the assistance of her mother or roommate, handle her
finances, and watch television.’ The AL]’s conclusion that Lewis’ activities demonstrate she
is capable of work is unsupported by the record.’’) (citation omitted); Brown v. Comm’r, 873
F.3d 251, 263 (4th Cir. 2017); Fletcher v. Colvin, No. 1:14CV380, 2015 WL 4506699 at *5-*8
(M.D.N.C. Jul. 23, 2015). In the present case, the ALJ cited Plaintiffs “work activity in a fast
pace [sic] restaurant, childcare, and caring for his grandmother who is elderly and infirm” with
no teference to the highly modified nature of these activities. Although the ALJ mentions
elsewhere in his decision that Plaintiffs performs his job “with accommodations” (Tr. at 25),
at no point does the AL] include the extent of these accommodations or the limited extent of
Plaintiffs caregiving activities. Notably, in his three-page RFC analysis, the ALJ stresses
Plaintiffs abilities to work and cate for his daughter and grandmother on four separate
occasions, each time without reference to the supervision and assistance these activities
requite. (Tr. at 23-25.) In short, the ALJ’s unqualified listing of Plaintiffs activities fails to
provide a basis for discounting Mr. Kolberg’s and Dr. Appollo’s opinions.
The AL] also discounts Mr. Kolberg’s opinions as inconsistent with the examination
conducted by Dr. Appollo. (Tr. at 25.) As noted in the administrative decision, Dr. Appollo
concluded, after extensive testing, that Plaintiffs
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cognitive skills fell in the borderline range of intelligence and were consistent
with the history of learning problems in school. Achievement scores were all
well below average. Achievement levels were consistent with the present level
of cognition. It was opined that, based on test results, [Plaintiff] would have
difficulty in the ability to understand, retain and follow instructions. Working
memoty skills fall in the extremely low range and [Plaintiff] would have
difficulty in the ability to sustain attention over a period to perform simple tasks.
[Plaintiff] can get along with others. [Plaintiff] had limited cognitive skills and
would find it frustrating and the ability to tolerate stress and pressure associated
with day-to-day activity. It was also noted that his medication for ADHD had
been helpful and [Plaintiff] needs to continue this to deal with symptoms that
affect his ability to follow through with tasks.
at 23 (citing Tr. at 341-53).) The ALJ never specifies what, if any, inconsistencies exist
between Dr. Appollo’s findings and Mr. Kolberg’s statements, and none ate apparent from
the record. In fact, it appears that both Dr. Appollo’s report and Mr. Kolberg’s statements
reflect vety poot memory and concentration and very limited abilities to handle stress and
understand, retain, and follow instructions.
Plaintiff raises additional issues regarding the ALJ’s treatment of these and other
opinions. However, the Court need not consider these additional issues at this time, given the
concerns already discussed and the need for a remand to allow the ALJ to consider and
evaluate relevant evidence in the first instance and provide sufficient explanation to allow for
judicial review.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for further consideration of Plaintiffs claim in accordance with the
above tecommendation. Defendant’s Motion for Judgment on the Pleadings [Doc. #14]
should be DENIED, and PlaintifPs Motion for Judgment Reversing the Commissioner [Doc.
15
#12] should be GRANTED to the extent set out herein. However, to the extent Plaintiff
seeks an immediate award of benefits, his Motion is DENIED.
This, the 30 day of August, 2021.
___Ls/ Joi Elizabeth Peake ___
United States Magistrate Judge
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