DUKES v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TROY D., )

)

Plaintiff, )

)

v. ) 1:23CV1023

)

LELAND C. DUDEK, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Troy D., 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

(the “Commissioner”), denying Plaintiff’s claim for Disability

Insurance Benefits (“DIB”). (Docket Entry 1.) The Commissioner

has filed the certified administrative record (Docket Entry 3

(cited herein as “Tr. __”)), and both parties have submitted

dispositive briefs in accordance with Rule 5 of the Supplemental

Rules for Social Security Actions under 42 U.S.C. § 405(g) (Docket

Entry 6 (Plaintiff’s Brief); Docket Entry 8 (Commissioner’s

1 President Donald J. Trump appointed Leland C. Dudek as the Acting

Commissioner of the Social Security Administration on February 17, 2025.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland C. Dudek

should substitute for Kilolo Kijakazi as the defendant in this suit. No further

action need be taken 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).

Memorandum)). For the reasons that follow, the Court will enter

judgment for the Commissioner.2

I. PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 232-35), alleging a disability

onset date of March 29, 2022 (see Tr. 232, 234). Upon denial of

that application initially (Tr. 108-18, 130-39) and on

reconsideration (Tr. 119-29, 141-50), Plaintiff requested a hearing

de novo before an Administrative Law Judge (“ALJ”) (Tr. 151).

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

the hearing. (Tr. 40-84.) The ALJ subsequently ruled that

Plaintiff did not qualify as disabled under the Act (Tr. 21-39),

and the Appeals Council thereafter denied Plaintiff’s request for

review (Tr. 8-13, 229-31), thereby making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that decision, the ALJ made the following

findings later adopted by the Commissioner:

1. [Plaintiff] meets the insured status requirements of

the . . . Act through December 31, 2024.

2. [Plaintiff] has not engaged in substantial gainful

activity since March 29, 2022, the alleged onset date.

3. [Plaintiff] has the following severe impairments:

degenerative disc disease, a rotator cuff tear of the

right shoulder, degenerative joint disease, sarcoidosis,

migraines, obstructive sleep apnea, diabetes and diabetic

2 On consent of the parties, “this case [wa]s referred to the [undersigned]

United States Magistrate Judge . . . to conduct all proceedings . . ., to order

the entry of judgment, and to conduct all post-judgment proceedings []herein.”

(Docket Entry 7 at 1.)

2

retinopathy, depression, anxiety, and posttraumatic

stress 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 medium work . . . except lifting

fifty pounds occasionally and twenty-five pounds

frequently; carry fifty pounds occasionally and twenty-

five pounds frequently; sit for six hours; stand for six

hours, and walk for six hours; push/pull as much as he

can lift/carry; occasionally reach overhead to the right;

reach frequently to the right; climb ramps and stairs

frequently; climb ladders, ropes, or scaffolds

occasionally; balance frequently; stoop frequently; kneel

frequently; crouch frequently; work at unprotected

heights occasionally; work with moving mechanical parts

occasionally; work in weather frequently; work in

humidity and wetness frequently; work in dust, odors,

fumes and pulmonary irritants frequently; work in extreme

cold occasionally, in extreme heat occasionally, in

vibration occasionally, and in moderate noise; is able to

perform simple, routine, and repetitive tasks, but not at

a production rate pace (e.g. assembly line work); perform

simple work-related decisions; interact with supervisors

frequently; interact with coworkers occasionally; never

interact with the public; make simple work-related

decisions; and perform simple, routine, and repetitive

tasks.

. . .

6. [Plaintiff] is unable to perform any 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.

3

. . .

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

defined in the . . . Act, from March 29, 2022, through

the date of th[e ALJ’s] decision.

(Tr. 26-35 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope

of . . . review of [such a] decision . . . is extremely limited.”

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

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

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Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (internal brackets and quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the 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).

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

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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)).3 “To regularize the

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

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

3 The Act “comprises two disability benefits programs. [DIB] . . .

provides benefits to disabled persons who have contributed to the program while

employed. The Supplemental Security Income Program . . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

6

F.3d 473, 475 n.2 (4th Cir. 1999).4 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 [RFC].” Id. at 179.5 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

4 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

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

5 “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

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the RFC] and [the claimant’s] vocational capabilities (age,

education, and past work experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65. If, at this step, the government cannot

carry its “evidentiary burden of proving that [the claimant]

remains able to work other jobs available in the community,” the

claimant qualifies as disabled. Hines, 453 F.3d at 567.6

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he [ALJ’s] decision is not supported by substantial

evidence because [he] erred as a matter of law by failing to

adequately incorporate in the RFC limitations related to social

interactions” (Docket Entry 6 at 8 (bold font, capitalization, and

block formatting omitted)); and

2) “[t]he [ALJ] erred as a matter of law by failing to

adeqautely [sic] evaluate if [] Plaintiff’s debilitating migrane

6 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, e.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

8

[sic] headaches equaled Listing 11.02B” (id. at 17 (bold font,

capitalization, and block formatting omitted)).

The Commissioner contends otherwise and seeks affirmance of

the ALJ’s decision. (Docket Entry 8 at 10-21.)

1. Social Interaction Limitations

In Plaintiff’s first issue on review, he argues that “[t]he

[ALJ’s] decision is not supported by substantial evidence because

[he] erred as a matter of law by failing to adequately incorporate

in the RFC limitations related to social interactions.” (Docket

Entry 6 at 8 (bold font, capitalization, and block formatting

omitted).) In that regard, Plaintiff notes that the “state

agency[] psychological consultants[] issued concurring

opinions . . . that [] Plaintiff ‘can tolerate coworkers and

supervisors in a non-public setting in which interactions are

brief, superficial and task oriented with only incidental contact

with the general public.’” (Id. at 9 (emphasis added by Plaintiff)

(purporting to quote Tr. 116 & 127).) According to Plaintiff,

“despite assessing moderate limitations in the domain of

interacting with others and despite finding the opinions of [the

state agency psychological consultants] regarding social

interaction limitations persuasive” (id. at 11 (referencing Tr. 29,

32-33)), “the ALJ did not explain why he limited [] Plaintiff to

occasional interaction with coworkers but allowed for frequent

interactions with supervisors” (id.), and “committed a reversible

9

error by omitting ‘superficial’ interactions with coworkers and

supervisors from the RFC” (id. at 12 (purporting to quote Tr. 115

& 127) (referencing Tr. 29-30)). In Plaintiff’s view, the ALJ’s

above-described errors do not qualify as “harmless” (id. at 16),

because “[t]he Program Operations Manual System (‘POMS’)

provides . . . [that t]he ability to accept instructions and

respond appropriately to criticism from supervisors and the ability

to get along with coworkers is [sic] ‘critical’ for the performance

of unskilled work” (id. (quoting POMS DI 25020.010(B)(3)(k), (l))),

and “[t]he [VE] testified that[,] if an individual was unable to

interact with supervisors and coworkers appropriately, there would

be no available jobs” (id. (citing Tr. 82)). For the reasons that

follow, those arguments miss the mark.

For benefits applications filed on or after March 27, 2017

(such as Plaintiff’s (see Tr. 232-35)), the SSA has enacted

substantial revisions to the regulations governing the evaluation

of administrative findings by state agency consultants, see

Revisions to Rules Regarding the Evaluation of Medical Evidence, 82

Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the new

regulations, ALJs need not assign an evidentiary weight to

administrative findings, see 20 C.F.R. § 404.1520c(a) (providing

that ALJs “will not defer or give any specific evidentiary weight,

including controlling weight, to any . . . prior administrative

medical finding(s)”); instead, an ALJ must determine and

“articulate in [the] . . . decision how persuasive [he or she]

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find[s] all of the . . . prior administrative medical findings in

[a claimant’s] case record,” 20 C.F.R. § 404.1520c(b) (emphasis

added). Moreover, when a state agency consultant “provides

multiple . . . prior administrative medical finding(s),” the ALJ

can evaluate the persuasiveness of such findings “together in a

single analysis” and need not articulate how he or she considered

those findings “individually.” 20 C.F.R. § 404.1520c(b)(1).

In evaluating the persuasiveness of an administrative finding,

the SSA deems supportability and consistency “the most important

factors” and thus the ALJ must address those two factors in

evaluating the persuasiveness of an administrative finding. 20

C.F.R. § 404.1520c(b)(2).7 The ALJ must address the three other

persuasiveness factors — the nature and extent of the medical

source’s relationship with the claimant and area of specialization,

as well as the catch-all “other factors that tend to support or

contradict” the administrative finding, 20 C.F.R.

§ 404.1520c(c)(3)-(5) — only when the ALJ finds two or more

administrative findings about the same issue “[e]qually persuasive”

in terms of supportability and consistency, 20 C.F.R.

§ 404.1520c(b)(3).

7 “Supportability” means the extent to which the objective medical evidence

and explanation provided by the state agency consultant supports the consultant’s

administrative finding. See 20 C.F.R. § 404.1520c(c)(1). “Consistency” denotes

the extent to which evidence from other medical and nonmedical sources harmonizes

with the state agency consultant’s administrative finding. See 20 C.F.R.

§ 404.1520c(c)(2).

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In this case, the initial-level state agency psychological

consultant opined that Plaintiff’s mental impairments caused

moderate limitation in his abilities to understand, remember, or

apply information; interact with others; concentrate, persist, or

maintain pace; and adapt or manage himself (see Tr. 111), as well

as that, “[o]verall, [Plaintiff] . . . [was] limited to [simple,

routine, and repetitive tasks (‘SRRTs’)]” (Tr. 112). With regard

to Plaintiff’s interaction-related limitations in the mental RFC,

the initial-level consultant believed that “[Plaintiff] c[ould]

tolerate coworkers [and] supervisors in [a] non public setting in

which interactions [we]re brief, superficial and task-oriented

[with ] only incidental contact [with the ] general public.” (Tr.

116 (emphasis added).)

Upon Plaintiff’s request for reconsideration, a different

consultant reviewed the record and found that Plaintiff had mild

limitation in his ability to understand, remember, or apply

information, and moderate limitation in his abilities to interact

with others; concentrate, persist, or maintain pace; and adapt or

manage himself. (See Tr. 122.) That consultant thereafter issued

three administrative findings regarding Plaintiff’s interaction-

related limitations in the mental RFC: 1) “[Plaintiff is] capable

of SRRTs in [a] low-stress, non-producti[on] environment with

limited personal demands” (Tr. 123 (emphasis added)); 2)

“[Plaintiff] appears to be able to sustain concentration at the

12

level needed to perform SRRTs in [a] low stress, low production

work setting with minimal interpersonal requirements” (Tr. 127

(emphasis added)); and 3) “[Plaintiff’s] interaction skills are

mildly to moderately impaired[, and he] is capable of working in

most settings that do not require extensive contact with the

public” (id. (emphasis added)).

The ALJ provided the following analysis of the persuasiveness

of the consultants’ administrative findings:

[The initial-level state agency psychological consultant]

determined [Plaintiff] had moderate limitations in the

ability to understand, remember, or apply information;

moderate limitations in the ability to interact with

others; moderate limitations in the ability to

concentrate, persist, or maintain pace; and moderate

limitations in the ability to adapt or manage

oneself. [That consultant] determined [Plaintiff] can

perform [SRRTs]. This determination is somewhat

persuasive. The review of [the consultant], which

included [Plaintiff]’s mental status examinations and

counseling, supported this opinion. The evidence was

consistent with moderate limitations in the ability to

interact with others and concentrate, persist, or

maintain pace. [Plaintiff] reported he had been fired

being mean to others. He reported difficulty

around more than two people. [He] reported a varied

ability to pay attention. However, he had no more than

mild limitations in the ability to understand, remember,

or apply information and adapt or manage

oneself. [Plaintiff] generally had normal cognition and

memory. He reported an ability to prepare his own simple

meals. Additionally, [he] reported independence in

activities of daily living.

. . . [The reconsideration-level state agency

psychological consultant] determined [Plaintiff] had mild

limitations in the ability to understand, remember, or

apply information; moderate limitations in the ability to

interact with others; moderate limitations in the ability

to concentrate, persist, or maintain pace; and moderate

limitations in the ability to adapt or manage

13

oneself. [That consultant] determined [Plaintiff] can

perform [SRRTs] in low stress, non producti[on]

environment with limited personal demands. This opinion

is somewhat persuasive. The review of [the consultant],

which included [Plaintiff]’s mental status examinations

and counseling, supported this opinion. The evidence was

consistent with the mild limitations in the ability to

understand, remember, or apply information, moderate

limitations in the ability to interact with others;

moderate limitations in the ability to concentrate,

persist, or maintain pace. [Plaintiff] reported he had

been fired due to being mean to others. He reported

difficulty around more than two people. [He] reported a

varied ability to pay attention. [He] generally had

normal cognition and memory. However, the evidence was

consistent with no more than mild limitations in the

ability to adapt or manage oneself. He reported an

ability to prepare his own simple meals. Additionally,

[he] reported independence in activities of daily living.

(Tr. 32-33 (emphasis added) (internal parenthetical citations

omitted).)

Plaintiff argues that, because the ALJ found the evidence

“consistent with” the consultants’ administrative findings that

Plaintiff’s mental impairments caused moderate limitation in his

ability to interact with others, the ALJ therefore “credited and

found persuasive” (Docket Entry 6 at 10 (citing Tr. 32-33, and

referencing Tr. 111, 122)) the administrative findings of both

consultants that Plaintiff could handle only “‘brief, superficial

and task oriented’” interactions with supervisors and coworkers

(id. at 9 (emphasis added by Plaintiff) (purporting to quote Tr.

116 & 127)). As detailed below, that argument lacks merit.

To begin, Plaintiff’s argument glosses over the significant

fact that the ALJ found the state agency psychological consultants’

14

administrative findings only “somewhat persuasive” (Tr. 32-33

(emphasis added)). (See Docket Entry 6 at 9-17.) In that regard,

although the ALJ agreed with the consultants’ administrative

findings at steps two and three of the SEP that Plaintiff’s mental

impairments resulted in moderate limitation in his ability to

interact with others (see Tr. 32-33; see also Tr. 111, 122

(consultants’ findings at steps two and three)), the ALJ did not

expressly credit the consultants’ mental RFC administrative

findings regarding Plaintiff’s interaction ability (see Tr. 32-33).

That fact distinguishes this case from others where courts remanded

based on an ALJ’s deeming an administrative finding fully

persuasive but then neither adopting nor explaining the failure to

adopt some of that finding’s limitations in the RFC. See, e.g.,

Jennifer S. v. Berryhill, No. CV 17-2487, 2018 WL 5112407, at *5

(D. Md. Oct. 19, 2018) (unpublished) (“‘While the ALJ was by no

means required to simply adopt all of the limitations found by the

state reviewing agent, the ALJ was required to explain the ALJ’s

basis for rejecting them if the ALJ chose to do so, particularly in

light of the fact that the ALJ expressly gave significant weight to

this opinion in formulating the RFC and hypothetical.’” (quoting

Harden v. Commissioner of Soc. Sec., Civ. No. 13-906, 2014 WL

4792294, at *4 (W.D. Pa. Sept. 24, 2014) (unpublished))).

Moreover, no basis exists for the Court to find that the ALJ

implicitly intended to adopt the consultants’ mental RFC

15

administrative findings regarding Plaintiff’s interaction ability.

Contrary to Plaintiff’s assertions, the consultants did not

“issue[] concurring opinions . . . that [] Plaintiff ‘can tolerate

coworkers and supervisors in a non-public setting in which

interactions are brief, superficial and task oriented.’” (Docket

Entry 6 at (underscoring added) (bolding added by Plaintiff)

(purporting to quote Tr. 116 & 122).) Only the initial-level

consultant offered that administrative finding. (See Tr. 116.) In

contrast, and as discussed above, the reconsideration-level

consultant found that, overall, Plaintiff’s mental impairments

necessitated a work “environment with limited personal demands”

(Tr. 123 (emphasis added); see also Tr. 127 (finding, when

assessing Plaintiff’s concentration-related abilities in mental

RFC, that he needed “work setting with minimal interpersonal

demands” (emphasis added))) but, when analyzing Plaintiff’s

interaction-related abilities in the mental RFC, noted that

Plaintiff’s “interaction skills [we]re mildly to moderately

impaired,” as well as that “[he wa]s capable of working in most

settings that d[id] not require extensive contact with the public”

(Tr. 127 (emphasis added)). Thus, not only did the

reconsideration-level consultant not limit Plaintiff to brief,

superficial, and task-oriented interactions with coworkers and

supervisors like the initial-level consultant did, but she omitted

16

any limitations on Plaintiff’s interactions with those individuals.

(Compare Tr. 116, with Tr. 127.)

Given those circumstances, it would make little sense for the

Court to find that, by deeming the consultants’ administrative

findings only “somewhat persuasive” (Tr. 32-33 (emphasis added)},

the ALJ intended to adopt both consultants’ interaction-related RFC

limitations, when those limitations directly conflict with each

other (compare Tr. 116, with Tr. 127). The Court finds more

reasonable that the Ald, after adopting the consultants’

administrative findings at steps two and three of the SEP that

Plaintiff had moderate limitation in his ability to interact with

others (see Tr. 32-33; see also Tr. 111, 122), formulated

supervisor and co-worker interaction limitations in the mental RFC

that struck a balance between a “brief, superficial, and task-

oriented” limitation (Tr. 116 (emphasis added) (initial-level

consultant’s opinion) ) and no limitation (see Tr. 127

(reconsideration-level consultant’s opinion)) on interaction with

supervisors and co-workers, i.e., the ALJ limited Plaintiff to

frequent interaction with supervisors and occasional interaction

with co-workers (see Tr. 30). See Hays v. Sullivan, 907 F.2d 1453,

1456 (4th Cir. 1990) (“Ultimately, it is the duty of the [ALJ]

reviewing a case, and not the responsibility of the courts, to make

findings of fact and to resolve conflicts in the evidence.” (citing

King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)); see also

17

Gilmore v. Kijakazi, No. 1:21CV420, 2022 WL 2869047, at *8

(M.D.N.C. July 21, 2022) (unpublished) (“[T]he ALJ’s decision

reveals that she found neither [the p]laintiff’s testimony

[supporting less-than-sedentary exertion] nor the medium-RFC

opinions from the prior ALJ and the state agency medical

consultants fully persuasive and instead struck a balance between

those two opposing viewpoints.”), recommendation adopted, 2022 WL

3446133 (M.D.N.C. Aug. 17, 2022) (unpublished) (Biggs, J.); McNeill

v. Berryhill, No. 1:16CV1081, 2017 WL 1184187, at *10 (M.D.N.C.

Mar. 29, 2017) (unpublished) (“[B]y adopting a light-exertion RFC,

the ALJ struck a balance between the state agency [medical

consultant]’s medium-exertion RFC and the

less-than-sedentary-exertion limitations opined by [two treating

physicians].”), recommendation adopted, slip op. (M.D.N.C. Apr. 24,

2017) (Eagles, J.).

The foregoing considerations also make clear why the Bostic

case relied on by Plaintiff does not aid his cause. (See Docket

Entry 6 at 13-15 (citing Bostic v. Commissioner of Soc. Sec., No.

5:22CV141, 2024 WL 551478, at *3-5 (W.D.N.C. Feb. 12, 2024)

(unpublished)).) In that case, “the [s]tate [a]gency psychological

consultants . . . opined that [the plaintiff] was able to tolerate

superficial interactions with public, coworkers and supervisors

while completing simple tasks,” and “[t]he ALJ found

the . . . consultant[s’] opinions were persuasive except that the

18

record d[id] not support limitations in concentration, persistence,

or maintaining pace, as the [plaintiff]’s mental status

examinations reveal intact attention and concentration.” Id. at *4

(internal quotation marks omitted). The court in Bostic held that,

“[b]lecause the ALJ omitted the [s]tate [a]gency psychological

consultants’ opinion that [the plaintiff] could tolerate

superficial interactions with public, coworkers, and supervisors,

and failed to include and [sic] explanation explaining the omission

after finding the opinions persuasive, the ALJ’s analysis is not

supported by substantial evidence.” Id. at *5 (emphasis added).

In contrast, here, as discussed above, the ALJ found the state

agency psychological consultants’ opinions only “somewhat

persuasive” (Tr. 32 (emphasis added)), and did not expressly credit

the initial-level consultant’s limitation to “brief, superficial

and task-oriented” interactions (Tr. 116).

Furthermore, even assuming, arguendo, that the ALJ erred by

not adopting the initial-level consultant’s “brief, superficial,

and task-oriented” limitation on interaction with supervisors and

co-workers (Tr. 116), Plaintiff still has not shown that such an

error prejudiced him. See generally Fisher v. Bowen, 869 F.2d

1055, 1057 (7th Cir. 1989) (observing that “[n]lo principle of

administrative law or common sense requires us to remand a case in

guest of a perfect opinion unless there is reason to believe that

the remand might lead to a different result”). All three jobs

19

cited by the VE (and adopted by the ALJ at step five of the SEP

(see Tr. 34)) have Dictionary of Occupational Titles (“DOT”) codes

containing a fifth digit of 8. (See Tr. 80-81 (citing DOT, No.

522.687-038 (“Turner”), 1991 WL 674306 (G.P.O. 4th ed. rev. 1991);

DOT, No. 651.687-010 (“Lithographed-Plate Inspector”), 1991 WL

685716); DOT, No. 727.687-030 (“Battery Stacker”), 1991 WL

679666)), representing the lowest level of human interaction in the

labor market, see 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,

Jr., C.d.). The VE further testified that 68,000 turner jobs,

70,000 inspector jobs, and 89,000 stacker jobs existed in the

national economy (see Tr. 81), which clearly constitute significant

job numbers under Fourth Circuit precedent, see McCall v. Saul, 844

Fed. Appx 680, 681 (4th Cir. 2021) (citing with approval cases

holding that 25,000 and 11,000 jobs nationally qualified as

significant job numbers); Hicks v. Califano, 600 F.2d 1048, 1051

(4th Cir. 1979) (“We do not think that the approximately 110 jobs

[available regionally] testified to by the [VE] constitute an

insignificant number.”). Moreover, the DOT listings for those jobs

rate the activity of “Taking Instructions - Helping” as “Not

Significant” and reflect the tasks of “Talking” and “Hearing” as

“Not Present - Activity or condition does not exist.” See DOT, No.

522.687-038 (“Turner”), 1991 WL 674306; DOT, No. 651.687-010

20

(“Lithographed-Plate Inspector”), 1991 WL 685716); DOT, No.

727.687-030 (“Battery Stacker”), 1991 WL 679666.

Consequently, the record does not support a finding that

remand for the ALJ to include in the RFC the initial-level

consultant’s “brief, superficial, and task-oriented” limitation on

interaction with supervisor and co-workers would result in a

different outcome in Plaintiff’s case. See Ridley G. v.

Commissioner of Soc. Sec., No. 1:20CV7/773, 2021 WL 4307507, at *8,

*13 (N.D.N.Y. Sept. 22, 2021) (unpublished) (deciding that RFC

restriction to no interaction or tandem tasks with coworkers

harmonizes with jobs with DOT level 8 interaction); Scott C. v.

Commissioner of Soc. Sec., No. 2:20CV109, 2021 WL 2682276, at *4-5

(D. Vt. June 30, 2021) (unpublished) (“‘[L]evel 8 interaction [in

the DOT] is compatible with an RFC limiting a claimant to only

superficial contact with coworkers, supervisors, and the public.’”

(quoting Alie v. Berryhill, 4:16CV1352, 2017 WL 2572287, at *16

(E.D. Mo. June 14, 2017) (unpublished)) (emphasis added)); Wilson

v. Saul, No. 1:19CV1089, 2020 WL 6293132, at *4 (M.D.N.C. Oct. 27,

2020) (unpublished) (Webster, M.J.) (“[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]llaintiff could perform do not require

Significant social interactions. In fact, the [DOT’s] descriptions

of the jobs identified by the VE list interaction with “People” as

21

being “Not Significant.”), recommendation adopted, slip op.

(M.D.N.C. Nov. 24, 2020) (Biggs, J.); Eldridge v. Berryhill, No.

CV 16-5289, 2018 WL 1092025, at *2 (W.D. Ark. Feb. 28, 2018)

(unpublished) (finding jobs categorized by DOT as involving level

8 interaction consistent with restrictions to “limited contact with

the general public” and “incidental contact with co-workers”

(emphasis added)); Shorey v. Astrue, No. 1:11cCV414, 2012 WL

3475790, at *6 (D. Me. July 13, 2012) (unpublished) (holding that

“inclusion of a limitation to occasional, brief, and superficial

contact with coworkers and supervisors in the [ALJ]’s hypothetical

question would not have excluded” jobs with a DOT “People” rating

of 8), recommendation adopted, 2012 WL 3477707 (D. Me. Aug. 14,

2012) (unpublished); Flaherty v. Halter, 182 F. Supp. 2d 824, 851

(D. Minn. 2001) (finding jobs with “not significant” levels of

social interaction under the DOT compatible with ALJ’s limitation

to “brief superficial type of contact with co-workers and

supervisors and members of the public” (emphasis added)).®

In sum, Plaintiff’s first assignment of error fails as a

matter of law.

® That body of case law also dooms Plaintiff’s argument that “the ALJ did

not explain why he limited [] Plaintiff to occasional interaction with coworkers

but allowed for frequent interactions with supervisors.” (Docket Entry 6 at 11.)

Even if the ALJ had limited Plaintiff to occasional (or brief and superficial)

interaction with supervisors, the jobs relied on by the ALJ at step five of the

SEP would have accommodated that limitation.

22

2. Listing 11.02B

Plaintiff’s second and final issue on review maintains that

“[t]he [ALJ] erred as a matter of law by failing to adeqautely

[sic] evaluate if [] Plaintiff’s debilitating migrane [sic]

headaches equaled Listing 11.02B.” (Docket Entry 6 at 17 (bold

font, capitalization, and block formatting omitted).) In that

regard, Plaintiff points out that, “[b]ecause there is no

[ l]isting specifically for migraine headaches, [Social Security

Ruling] 19-4p[, Titles II and XVI Evaluating Cases Involving

Primary Headache Disorders, 2019 WL 4169635 (Aug. 26, 2019) (“SSR

19-4p”),] instructs ALJs . . . [t]o evaluate the severity and

duration of a primary headache disorder under the Listing 11.02(B)

criteria.” (Docket Entry 6 at 18 (citing SSR 19-4p, 2019 WL

4169635, at *7).) According to Plaintiff, despite the fact that

“Plaintiff d[id] not have a seizure disorder” (id. at 19), “[t]he

ALJ found that [ L]isting [11.02(B) wa]s not equaled because []

Plaintiff did not have evidence of seizure, syncope, or loss of

consciousness” (id. (emphasis added by Plaintiff) (citing Tr. 28)).

In Plaintiff’s view, “SSR 19-4p requires the ALJ to consider

whether Plaintiff’s “headaches” are equal in severity and duration

to the criteria in [Listing] 11.02(B) . . ., [and] not whether []

Plaintiff experienced seizures or syncope or loss of

consciousness.” (Id. (emphasis added by Plaintiff).) Plaintiff

contends that “[t]he ALJ’s failure to evaluate migraines under the

23

correct legal standard as required by SSR 19-4p in evaluating

Listing 11.02 requires a remand and a showing of harm is not

necessary.” (Id. at 20.) Those contentions fall short.

“Under Step 3, the [SSA’s SEP] regulation states that a

claimant will be found disabled if he or she has an impairment that

‘meets or equals one of [the] listings in [A]ppendix 1 of [20

C.F.R. Pt. 404, Subpt. P] and meets the duration requirement.’”

Radford v. Colvin, 734 F.3d 288, 293 (4th Cir. 2013) (quoting 20

C.F.R. § 404.1520(a)(4)(iii) (internal bracketed numbers omitted)).

“The listings set out at 20 [C.F.R. P]t. 404, [S]ubpt. P, App[’x]

1, are descriptions of various physical and mental illnesses and

abnormalities, most of which are categorized by the body system

they affect. Each impairment is defined in terms of several

specific medical signs, symptoms, or laboratory test results.”

Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990) (internal footnote

and parentheticals omitted).

“In order to satisfy a listing and qualify for benefits, a

person must meet all of the medical criteria in a particular

listing.” Bennett v. Sullivan, 917 F.2d 157, 160 (4th Cir. 1990)

(citing Zebley, 493 U.S. at 530, and 20 C.F.R. § 404.1526(a)); see

also Zebley, 493 U.S. at 530 (“An impairment that manifests only

some of those criteria [in a listing], no matter how severely, does

not qualify.”). “An impairment or combination of impairments

medically equals a listing when it is at least equal in severity

24

and duration to the criteria of any listed impairment.” Grimes v.

Colvin, No. 1:14CV891, 2016 WL 1312031, at *4 (M.D.N.C. Mar. 31,

2016) (unpublished) (Osteen, Jr., C.J.) (citing 20 C.F.R.

§ 416.926(a)-(b)) (emphasis added).

“[TO]nly where there is ample evidence in the record to support

a determination that a claimant’s impairment meets or equals one of

the listed impairments must the ALJ identify the relevant listed

impairments and compare them to evidence of a plaintiff’s

symptoms.” Reynolds v. Astrue, No. 3:11CV49, 2012 WL 748668, at *4

(W.D.N.C. Mar. 8, 2012) (unpublished) (emphasis added) (citing Cook

v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)); see also

Russell v. Chater, No. 94-2371, 60 F.3d 824 (table), 1995 WL

417576, at *3 (4th Cir. July 7, 1995) (unpublished) (“Cook,

however, does not establish an inflexible rule requiring an

exhaustive point-by-point discussion [of listings] in all

cases.”).°

° The Cook court’s confinement of the ALJ's duty to explicitly identify

listings and compare their elements to the record to situations in which the

claimant comes forward with “ample evidence” that an impairment meets a listing

makes sense. “Step two of the [SEP] is a threshold question with a de minimis

severity requirement,” Felton-Miller v. Astrue, 459 F. App’x 226, 230 (4th Cir.

2011) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)), but “[t]he criteria

in the medical listings [at step three] are demanding and stringent,” Falco v.

Shalala, 27 F.3d 160, 162 (5th Cir. 1994) (internal quotation marks omitted); see

also Zebley, 493 U.S. at 532 (“[The SSA] has set the medical criteria defining

the listed impairments at a higher level of severity than the statutory

[disability] standard.”). Accordingly, the mere fact that an impairment

qualifies as severe at step two does not suggest that it meets a listing at step

three. No reason thus exists for courts to require ALJs to document the manner

in which every impairment deemed severe at step two fails to meet a listing at

step three; rather, common sense supports the Fourth Circuit’s decision in Cook

to insist that ALJs discuss a specific listing only when the claimant marshals

“ample evidence” that an impairment actually meets the criteria for that listing.

Nor does the more recent ruling in Radford counsel otherwise. Although the

Fourth Circuit there remanded due to an ALJ’s “insufficient legal analysis” at

25

Listing 11.02(B) requires proof of “[d]yscognitive seizures []

occurring at least once a week for at least 3 consecutive months

despite adherence to prescribed treatment.” 20 C.F.R. Pt. 404,

Subpt. P, App’x 1, § 11.02(B) (internal parenthetical citations

omitted). The introduction to the neurological listings describes

“[d]yscognitive seizures” as “characterized by alteration of

consciousness without convulsions or loss of muscle control.

During the seizure, blank staring, change of facial expression, and

automatisms (such as lip smacking, chewing or swallowing, or

repetitive simple actions, such as gestures or verbal utterances)

may occur.” Id., ¶ 11.00(H)(1)(b).

SSR 19-4p acknowledges that no specific listing exists for

migraine headaches and notes that, “[w]hile uncommon, a person with

a primary headache disorder may exhibit equivalent signs and

limitations to those detailed in [L]isting 11.02[(B)].” SSR 19-

4p, 2019 WL 4169635, at *7 (emphasis added). To determine whether

a claimant’s migraine headaches medically equal the criteria of

Listing 11.02(B), an ALJ must:

consider[ a] detailed description from a[n acceptable

medical source] of a typical headache event, including

all associated phenomena (for example, premonitory

symptoms, aura, duration, intensity, and accompanying

symptoms); the frequency of headache events; adherence to

prescribed treatment; side effects of treatment (for

example, many medications used for treating a primary

headache disorder can produce drowsiness, confusion, or

step three, it did so consistently with the standard set in Cook, as the record

contained “probative evidence strongly suggesting that [the claimant] me[t] or

equal[ed a particular listing].” Radford, 734 F.3d at 295.

26

inattention); and limitations in functioning that may be

associated with the primary headache disorder or effects

of its treatment, such as interference with activity

during the day (for example, the need for a darkened and

quiet room, having to lie down without moving, a sleep

disturbance that affects daytime activities, or other

related needs and limitations).

Id. (emphasis added).

In this case, the ALJ acknowledged SSR 19-4p and evaluated

Plaintiff’s migraine headaches under Listing 11.02, but found that

Plaintiff’s migraine headaches did not medically equal that

Listing, because “[Plaintiff] did not have evidence of seizure,

syncope, or loss of consciousness.” (Tr. 28.) The ALJ erred by

relying on the absence “of seizure, syncope, or loss of

consciousness” (id.), as the ALJ should have instead considered the

factors in SSR 19-4p described above. That error, however, remains

harmless under the circumstances presented here, because, as

explained more fully below, the record lacks “ample evidence” that

Plaintiff’s migraine headaches could have medically equaled Listing

11.02(B), Cook, 783 F.2d at 1172-73.

As an initial matter, Plaintiff made no effort to point out

record evidence (let alone “ample evidence,” id.) demonstrating

that his migraine headaches could have medically equaled the

criteria of Listing 11.02(B) but, instead, asserted, without

citation to authority, that “[t]he ALJ’s failure to evaluate

[Plaintiff’s] migraines under the correct legal

standard . . . require[d] remand and a showing of harm [wa]s not

27

necessary.” (Docket Entry 6 at 20.) Plaintiff’s unsupported

assertion that the ALJ’s improper medical equivalence analysis

under Listing 11.02(B) constituted per se prejudicial error

conflicts with Cook’s “ample evidence” standard, Cook, 783 F.2d at

1172-73, and Plaintiff’s failure to point to any evidence showing

that his migraine headaches could have medically equaled Listing

11.02(B) precludes relief on that front, see United States v.

Zannino, 895 F.2d 1, 17 (lst Cir. 1990) (“[A] litigant has an

obligation to spell out its arguments squarely and distinctly, or

else forever hold its peace.” (internal quotation marks omitted));

Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1

n.1l (M.D.N.C. Mar. 7, 2014) (unpublished) (Schroeder, J.) (“A party

should not expect a court to do the work that it elected not to

do.”).

Moreover, the record lacks “[a] detailed description from a[n

acceptable medical source] of a typical headache event, including

all associated phenomena,” SSR 19-4p, 2019 WL 4169635, at *7.

Although the record reflects Plaintiff’s history of migraine

headaches (see, e.g., Tr. 370-71), Plaintiff did not seek treatment

for a migraine headache during the relevant period (see Tr. 358-

412), and denied headaches at the most recent appointment with his

primary care physician in the record (see Tr. 370 (Aug. 23,

28

2022)).10 Furthermore, none of Plaintiff’s treatment providers

indicated that he or she actually “observ[ed ] a typical headache

event” or provided “a detailed description of the [observed]

event,” SSR 19-4p, 2019 WL 4169635, at *6, but, instead noted that

Plaintiff remained in no acute distress with normal attention and

concentration. (See Tr. 386, 402, 412.) Additionally, although

Plaintiff testified that had suffered from “migraine [headaches]

for several years” triggered by “bright light,” “noise,” and

“[s]trong smells,” and that caused him “to get away from people”

and to seek “peace and quiet” with “no distraction” (Tr. 59), the

regulations make clear that an ALJ “will not substitute [a

claimant’s] allegations of pain or other symptoms for a missing or

deficient sign or laboratory finding to raise the severity of [a

claimant’s] impairment[] to that of a listed impairment,” 20 C.F.R.

§ 404.1529(d)(3). See Smith v. Commissioner of Soc. Sec., No.

2:21CV10093, 2022 WL 1052427, at *5 (E.D. Mich. Mar. 4, 2022)

(unpublished) (crediting the Commissioner’s argument that the

plaintiff’s “self-reported descriptions of her headaches [we]re not

medically equivalent to a medical professional’s observations,”

because “[t]he SSA considers ‘a detailed description from an

10 The record contains only one treatment visit for migraine headaches,

which occurred on August 27, 2021, over six months prior to Plaintiff’s alleged

onset date of disability. (See Tr. 543.) In that note, Plaintiff reported that

his migraine headaches “seem[ed] to be responding well to naproxen and

sumatriptan,” as well as that “[h]e ha[d] had no significant headaches recently”

and “had severe migraines that would bring him to tears, most recently perhaps

1 year ago.” (Id. (emphasis added).)

29

[acceptable medical source]’” (quoting SSR 19-4p, 2019 WL 4169635,

at *7)), recommendation adopted, 2022 WL 965022 (E.D. Mich. Mar.

30, 2022) (unpublished).

In short, any failure by the ALJ to provide a proper medical

equivalence analysis under Listing 11.02(B) did not prejudice

Plaintiff, because the record lacks “ample evidence,” Cook, 783

F.2d at 1172-73, that his migraine headaches could have medically

equaled the criteria of Listing 11.02(B).

III. CONCLUSION

Plaintiff has not established an error warranting relief.

IT IS THEREFORE ORDERED that the Commissioner’s decision

finding no disability is AFFIRMED, and that this action is

DISMISSED with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

February 25, 2025

30