The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENNETH T., )
)
Plaintiff, )
)
v. ) 1:23CV437
)
MARTIN J. O’MALLEY;! )
Commissioner of Social Security, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Kenneth T. (“Plaintiff”) brought this action pursuant to Section 1631(c)(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 claims for
Supplemental Security Income Benefits (“SSI”) under Title XVI of the Act. The parties have
filed cross-motions for judgment, and the administrative record has been certified to the Court
for review.
PROCEDURAL HISTORY
Plaintiff previously received SSI based on disability as a child. As required by law, the
Social Security Administration redetermined Plaintiffs eligibility for benefits when he attained
1 On December 20, 2023, Martin J. O’Malley was sworn in as Commissioner of Social Security, replacing Acting
Commissioner Kilolo Kijakazi. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J.
O”’Malley should be substituted for Kilolo Kijakazi as Defendant in this suit. No further action need be taken
to continue this suit by reason of the last sentence of section 405(g) of the Social Security Act, 42 U.S.C. §
405(g).
the age of 18, and on February 22, 2021, the agency determined that Plaintiff was no longer
disabled under the Act as of Februaty 1, 2021. (T'r. at 28, 166-70.) This determination was
upheld upon reconsideration, which consisted of a hearing before a State agency Disability
Hearing Officer. (Tr. at 28, 181-206.) Thereafter, Plaintiff requested an administrative hearing
de novo before an Administrative Law Judge (“ALJ”). (Tr. at 207-08.) On May 11, 2022,
Plaintiff appeared at the subsequent telephonic hearing, at which Plaintiff, his mother, and an
impartial vocational expert testified. (Tr. at 28, 45-84.) Although informed of his right to
teptesentation, Plaintiff chose to appear and testify without an attorney or other
representative. (It. at 28, 50-52.) On October 4, 2022, the AL] issued a decision concluding
that Plaintiff was not disabled within the meaning of the Act as of February 1, 2021 (Ir. at
39), and on March 20, 2023, the Appeals Council denied review, thereby making the AL]’s
conclusion the Commissionet’s final decision for purposes of judicial review (Tr. 5-11).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the
scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts ate 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
AL] 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
quotation 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.” Mastto v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL]].” 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
reached based upon a cortect 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 “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). 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)).?
“The Commissioner uses a five-step process 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 1s
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 the first two steps, and if
the claimant’s impaitment meets or equals a “listed impairment” at step three, “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,” then “the AL] must assess the claimant’s residual functional
2 The Social Security Act comptises two disability benefits programs. The Social Secutity Disability Insurance
Program (SSDD,, established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Secutity Income
Progtam (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CF.R. pt. 416 (SSD, governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.
capacity (RFC’).” Id. at 179.3 Step four then requires the ALJ to assess whether, based on
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] 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 AL] 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 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.
Ill. DISCUSSION
In the present case, the AL] noted that Plaintiff had been eligible for SSI as a child.
(Tr. at 31.) As noted above, Plaintiff was notified that he was found no longer disabled as of
February 1, 2021 based on a redetermination of disability for adults. (Tr. at 31.) Because the
issue of prior substantial gainful activity is irrelevant in these circumstances, the AL] proceeded
3 “REC 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 clatmant’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 clatmant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional ltmitations
(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 clatmant’s impairments and any related symptoms (¢.g, pain).”
Hines, 453 F.3d at 562-63.
directly to step two of the sequential analysis and determined that Plaintiff suffered from the
following severe impairments:
depression, anxiety, and attention deficit hyperactivity disorder (ADHD)[_]
(Tr. at 31.) The ALJ found at step three that none of the impairments identified at step two,
individually or in combination, met or equaled a disability listing. (It. at 31-32.) The AL]
therefore assessed Plaintiff's RFC and determined that he could perform “a full range of work
at all exertional levels.” (Ir. at 33.) The ALJ further determined that Plaintiff required the
following, non-exertional limitations:
[Plaintiff] can understand/remember/and/or carry out simple, unskilled work
of a routine and repetitive nature; he can maintain attention and concentration
for at least two-hour periods of time sufficient to carry out unskilled work over
the course of a normal workday for a normal work week; he can adapt to
routine, infrequent workplace changes at a non-production pace (meaning no
assembly line/conveyor belt type jobs); he can tolerate occasional interaction
with the public; he can tolerate occasional interaction with coworkers and
supetvisors, meaning work not requiring teamwork for task completion, and
not tandem work.
(Tr. at 33.) Plaintiff had no past relevant work to consider at step four. 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 38.) Therefore, the ALJ concluded
that Plaintiff was not disabled under the Act. (Tr. at 39.)
Plaintiff now challenges the ALJ’s decision in two respects. Specifically, he argues that
the AL} (1) “erred by failing to fully and fairly develop the record for an unrepresented
claimant,” and (2) “erred in her evaluation of the limiting effects [of] Plaintiffs psychological
disorders on his ability to work.” (PL’s Br. [Doc. #12] at 1.) After a thorough review of the
record, the Court finds that Plaintiffs second contention merits remand.
As an initial matter, Plaintiff alleges disability due to ADHD (combined type), anxiety,
XYY syndrome which manifests as oppositional defiant disorder (“ODD”) and bipolar mood
disorder (including suicidal ideation), sensory integration disorder, and autism spectrum
disorder. (Tr. at 33, 130, 146, 148, 154, 155, 158.) The record further indicates a diagnosis of
possible borderline intellectual disability based on IQ scores ranging from 79 to 81. (Tr. at
155, 193.) Plaintiff was eligible for special education services based on emotional disability,
rather than an 1Q-based or learning impairment (Tr. at 156), and it was noted that “most of
his issues appear to be related to impulsivity/poor frustration tolerance” (Tr. at 148).
At step two of the sequential analysis, as set out above, the AL] found that only three
of Plaintiffs alleged impaitrments—depression, anxiety, and ADHD—dqualified as severe. (I'r.
at 31.) In making this finding, the ALJ did not specifically addtess Plaintiffs additional
impairments, other than noting that “any other condition, not specifically mentioned in this
decision, but mentioned briefly in the record, is non-severe.” (T'r. at 31.) The ALJ did not
directly address Plaintiffs XYY syndrome and related oppositional defiant disorder and
bipolar mood disorder,‘ nor did the ALJ directly address Plaintiff's autism spectrum disorder.
Notably, the AL]’s omission of a severe impaitment at step two does not, without mote,
necessitate remand. “As long as the ALJ determines that the claimant has at least one severe
impaitment and proceeds to discuss all of the medical evidence, any error regarding failure to
+ Notably, Plaintiff's oppositional defiant disorder was the basis for his disability determination as a child in
2016. (Tr. at 135.)
list a specific impairment as severe at step two is harmless.” McClain v. Colvin, No.
1:12CV1374, 2014 WL 2167832, at *4 (M.D.N.C. May 23, 2014) (citations omitted).°
However, in the present case, Plaintiff contends that the ALJ’s subsequent analysis also failed
to account for the effects of his mental impairments on his ability to work. The Court agtees.
In particular, Plaintiff contends that the AL] erroneously rejected subjective evidence
regarding the impact of Plaintiffs mental impairments on his functioning “because it was not
sufficiently verified by some sort of objective indicator.” (Pl.’s Br. at 9.)
When evaluating a claimant’s symptoms, the ALJ’s decision must “contain specific
reasons for the weight given to the individual’s symptoms, be consistent with and supported
by the evidence, and be clearly articulated so the individual and any subsequent reviewer can
assess how the adjudicator evaluated the individual’s symptoms.” Social Security Ruling 16-
3p, Titles II and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3p, 2017 WL
5180304, at *10 (Oct. 25, 2017) (SSR 16-3p”); see also 20 C.F.R. § 416.929. In Arakas v.
Commissioner of Social Security, 983 F.3d 83 (4th Cir. 2020), the Fourth Circuit clarified the
procedure an ALJ must follow when assessing a claimant’s statements:
° Step two is a threshold determination of whether claimants have a severe impairment (or combination of
impairments) that meets the twelve-month duration requirement and significantly limits their ability to do basic
work activities. 20 C.F.R. §§ 404.1520(a)(4)qi), 416.920(a)(4)(1). If the Commissioner finds no severe
impairments, the claimant is not disabled and the analysis does not proceed to the other steps. 20 C.F.R. §§
404.1520(a) (4) (ii), 416.920(a) (4) (i). However, if a claimant does have a severe impattment or combination of
impairments, the AL] must consider the effects of both the severe and non-severe impairments at the
subsequent steps of the process, including the determination of RFC. See 20 C.F.R. § 404.1523; Social Security
Ruling 96—-8p, Policy Interpretation Ruling Titles I and XVI: Assessing Residual Functional Capacity in Initial
Claims, 1996 WL 374184, at * 5 July 2, 1996); Social Security Ruling 86-8: Titles I] and XVI: The Sequential
Evaluation Process, 1986 WL 68636, at *5 (Jan. 1, 1986). If the ALJ proceeds to discuss and consider the non-
severe impairment at subsequent steps, there is no prejudice to the claimant. See Thomas v. Comm’r, Soc. Sec.
Admin., No. SAG—11-3587, 2013 WL 210626, at *2 (D. Md. Jan. 17, 2013) (finding harmless error where AL)
continued with sequential evaluation process and considered both severe and non-severe impairments); Kenney
vy. Asttue, No. CBD—10-1506, 2011 WL 5025014, at *5 (D. Md. Oct. 20, 2011) (declining to remand for failure
to classify an impaitment as severe because it would not change the result).
When evaluating a claimant’s symptoms, ALJs must use the two-step
framework set forth in 20 C.F.R. § 404.1529 and SSR 16-3p, 2016 WL 1119029
(Mar. 16, 2016). First, the ALJ must determine whether objective medical
evidence presents a “medically determinable impairment” that could reasonably
be expected to produce the claimant’s alleged symptoms. 20 CFR. §
404.1529(b); SSR 16-3p, 2016 WL 1119029, at *3.
Second, after finding a medically determinable impairment, the AL] must assess
the intensity and persistence of the alleged symptoms to determine how they
affect the claimant’s ability to work and whether the claimant is disabled. See 20
C.F.R. § 404.1529(c); SSR 16-3p, 2016 WL 1119029, at *4. At this step,
objective evidence is of required to find the claimant disabled. SSR 16-3p, 2016
WL 1119029, at *4-5. SSR 16-3p recognizes that “[s]ymptoms cannot always
be measured objectively through clinical or laboratory diagnostic
techniques.” Id. at *4. Thus, the AL] must consider the entire case record and
may “not disregard an individual’s statements about the intensity, persistence,
and limiting effects of symptoms solely because the objective medical evidence
does not substantiate” them. Id. at *5.
Arakas, 983 F.3d at 95.
In Arakas, the Fourth Circuit further explained that some conditions, such as
fibromyalgia, simply do not manifest themselves in objective signs and symptoms. Id. at 97.
Several years later, in Shelley C. v. Commissioner of Social Security Administration, 61 F.4th
341, 361-62 (4th Cir. 2023), the court extended the reasoning in Arakas to include
psychological impaitments, and depression in particular. Because the symptoms of both
fibromyalgia and depression were “entirely subjective,” the ALJs in these cases erted by
“requitine that [the claimant’s] subjective statements be validated by objective medical
support.” Shelley C., 61 F.4th at 361-62 (quoting Arakas, 983 F.3d at 96).
Plaintiff now argues that the AL] in the present case also improperly relied on objective
evidence to discount his subjective statements. Here, upon reviewing all of the testimony and
the record as a whole, the ALJ concluded that “statements concerning the intensity,
persistence[,] and limiting effects of [Plaintiff's] symptoms [were] not entirely consistent with
the medical evidence and other evidence in the record.” (Tr. at 34.) In making this finding,
the ALJ relied on multiple factors, including the longitudinal psychiatric treatment record,
Plaintiffs IEP during the relevant time period, and the opinions of the State agency
psychological consultants and the psychological consultative examiner. (Tt. at 35-37.)
Nevertheless, the AL] appears to discount evidence supportive of Plaintiffs claims primarily
because that evidence is based on the assertions of Plaintiff and his mother. (See, e.g., Tr. at
37.) This is particularly true in the case of opinion issued by the psychological consultative
examiner, Tanya Goodwin-Baldwin, PsyD, HSP-P.
At Plaintiffs hearing on May 11, 2022, the ALJ determined that she required updated
and additional evidence to fairly evaluate Plaintiffs claim. Therefore, Plaintiff obtained
updated medical records from the months predating Plaintiff's hearing and also ordered a
consultative examination. Dr. Goodwin-Baldwin examined Plaintiff on June 8, 2022 and
submitted an 8-page Comprehensive Clinical Psychological Evaluation to the Court, which
the ALJ entered into the record later that month. (Tr. 355, 719-26.) In pertinent part, Dr.
Goodwin-Baldwin diagnosed Plaintiff with autism spectrum disorder and concluded as
follows:
[Plaintiff] has mild impaitment in abstract thinking, adequate general knowledge
of information, judgement, and mathematics skills. He has adequate immediate
recall and retention, recent memory, and remote memory. Based on [Plaintiff's]
ptesentation, collateral information, and mental status response, he appears to
have limited intellectual capacity to perform simple, routine, repetitive tasks as
well as understand, retain, and follow instructions. [Plaintiff] may also have
difficulty tolerating the stress associated with day-to-day work activity due to his
emotional concerns. His prognosis is guarded due to his cognitive, adaptive,
and social concerns.
10
(Tr. at 726.) The ALJ acknowledged this opinion in her decision, but found that it had “only
some persuasive value.” (Tr. at 37.) In doing so, she explained that Dr. Goodwin-Baldwin’s
opinion “is based mostly on [Plaintiffs] few subjective complaints but directly attributed to
his mother’s assertions. Likewise, [the] diagnosis of autism is not supported by the psychiatric
treatment records, but rather on [Plaintiff's] mothet’s assertions of [Plaintiffs] symptoms.”
(Tr. at 37.) Notably, the ALJ provided no other basis for discounting Dr. Goodwin-Baldwin’s
clinical findings or the opinions based on them.°
The updated medical records submitted after the hearing also obtained the medical
opinion from Plaintiff's treating psychiatrist, Dr. Laura Dunn. Dr. Dunn assessed Plaintiff
with mood disorder, XYY trisomy, anxiety, ADHD, and pervasive developmental disorder,
and opined that:
I do not feel that he is able to do any full-time employment. Right now his mood
instability, anger, anxiety, and social skills issues would interfere.
(Ir. at 701.) The ALJ also found that this opinion was less persuasive because the
determination of whether an individual is unable to work is a finding reserved to the
commissioner. (T'r. at 37.)
The only opinion evidence the AL] found persuasive were the opinions of the State
agency psychological consultants, Darolyn Hilts, PhD, and Brian Grover, PsyD. (Ir. at 37.)
6 The psychiatric treatment records actually support Dr. Goodwin-Baldwin’s diagnosis of autism, with records
from Plaintiff's treating psychiatrist Dr. Laura Dunn reflecting diagnoses of Autism Spectrum Disorder, Bipolar
mood disorder secondary to XYY with oppositional components, Anxiety, and ADHD since at least 2015 and
continuing through 2022. (It. at 434-35, 436-37, 438-39, 440-41, 442-43, 444-45, 446-47, 448-49, 546-48, 554-
56, 558-60, 561-62, 563-64, 566-67, 569-70, 632-34, 636-38, 643-45, 647-48, 649-50, 651-52, 653-54, 656-57,
659-60, 662-63, 664-65, 667-69, 671, 680-81, 683-85, 686-88, 690-92, 703-05, 706-08, 709-11, 712-13.) Thus,
it is not clear what treatment records the ALJ was referring to in finding that the “diagnosis of autism is not
supported by the psychiatric treatment records.”
11
Specifically, the ALJ found that Drs. Hilts and Grover’s opinions that Plaintiff “could perform
simple tasks have substantial persuasive value because they ate consistent with the IEP
findings, medical source notes, and the psychological consultative examinet’s notation that
[Plaintiff] could follow simple instructions.” (Tr. at 37.) This single sentence, which represents
the ALJ’s analysis in its entirety, presents several problems. First, the State agency consultants
did not opine that Plaintiff could perform simple tasks, but rather that he could perform
simple, routine, repetitive tasks “in a stable, low pressure setting with minimal interpersonal
demands.” (Tr. at 141-42, 150.) Second, Dr. Goodwin-Baldwin did not, in fact, opine that
Plaintiff could “follow simple instructions,” but rather that “he appears to have limited
intellectual capacity to perform simple, routine, repetitive tasks as well as understand, retain,
and follow instructions.” (Tr. at 726) (emphasis added). ‘Thus, the opinions ate not consistent,
as the ALJ suggests. Third, and most crucially, the State agency consultants’ opinions predate
the opinion of the consultative examiner by eight and sixteen months, respectively. (Tr. at
143, 151.) This means that the consultants did not have the benefit of the examiner’s
evaluation ot opinions when forming their own assessments. The only person to evaluate Dr.
Goodwin-Baldwin’s findings was the AL] herself. Despite having ordered the examination in
otder to build a full and fair picture of Plaintiffs limitations, it appears that the AL]
etroneously discounted the examiner’s findings when—and because—they supported the
subjective complaints of both Plaintiff and his mother. In doing so, she violated both Arakas
and Shelley C.. The ALJ then reverted to the earlier evidence of the State agency consultants,
despite previously finding that such evidence was insufficient to assess Plaintiffs claims. Such
cherty-picking of the record renders the ALJ’s decision unsupported by substantial evidence.
12
Because this matter requires remand, the Court need not address the additional issue raised by
Plaintiff.
IT IS THEREFORE ORDERED that the Commissioner’s decision finding of no
disability is REVERSED, and that the matter is REMANDED to the Commissioner under
sentence four of 42 U.S.C. § 405(g). To this extent, it is further ORDERED that Defendant’s
Dispositive Brief [Doc. #13] is DENIED, and Plaintiffs Dispositive Brief [Doc. #12] is
GRANTED to the extent set forth herein.
This, the 30% day of September, 2024.
nited States Magistrate Judge
13