INGRAM v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 12/19/2017. RECOMMENDED that the Commissioner's decision finding no disability be vacated and that the matter be remanded under sentence four of 4 2 U.S.C. § 405(g), for further administrative proceedings to properly address the psychological opinion evidence, adopt an RFC logically supported by that evidence, and to assess Plaintiff's capacity for past relevant work or other avail able work. As a result, Plaintiff's Motion for Judgment (Docket Entry 11 ) should be granted in part (i.e., to the extent it requests remand), and Defendant's Motion for Judgment on the Pleadings (Docket Entry 13 ) should be denied.(Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ELLIS INGRAM,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

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1:17CV135

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ellis Ingram, brought this action pursuant to the
Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security,

denying

Plaintiff’s

claim

for

Disability

Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Docket
Entry 2.)

Defendant has filed the certified administrative record

(Docket Entry 8 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 11, 13; see also Docket Entry 12
(Plaintiff’s Brief), Docket Entry 14 (Defendant’s Memorandum)).
For the reasons that follow, the Court should remand this matter
for further administrative proceedings.

I.

PROCEDURAL HISTORY

Plaintiff applied for DIB and SSI, alleging an onset date of
January 1, 2007.

(Tr. 239-60.)1

Upon denial of those applications

initially (Tr. 121-34, 159-67) and on reconsideration (Tr. 135-53,
174-83),

Plaintiff

requested

a

hearing

de

Administrative Law Judge (“ALJ”) (Tr. 184-89).2

novo

before

an

Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 97-120.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 38-52; Docket Entry 14-1

at 13.)3 The Appeals Council thereafter denied Plaintiff’s request
for review (Tr. 1-6, 34-35, 344-36, 348-50), making the ALJ’s
ruling the Commissioner’s final decision for purposes of judicial
review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] meets the insured status requirements of
the [] Act through March 31, 2011.
1

In other application materials, Plaintiff listed his alleged onset date as June
1, 2009. (See Tr. 249, 255.) On June 15, 2015, Plaintiff, through counsel,
amended his onset date to June 1, 2009. (See Tr. 339.)

2

The record contains neither Plaintiff’s application for DIB, nor any
administrative documents reflecting denial of that application at the initial and
reconsideration levels of review.

3

The ALJ issued a decision on September 15, 2015, which addressed only
Plaintiff’s SSI claim (Tr. 77-91), but, on September 24, 2015, issued an amended
decision reflecting adjudication of both Plaintiff’s DIB and SSI claims (Tr. 3852; Docket Entry 14-1 at 13). The administrative transcript omits the last page
of the ALJ’s September 24, 2015, decision. (See Tr. 52-53.) Defendant attached
a complete copy of that decision, including the missing page, to her Memorandum
in Support of the Commissioner’s Motion for Judgment on the Pleadings (see Docket
Entries 14, 14-1), and “[c]ounsel for both parties have conferred and agree that
the attached exhibit is the entire decision” (Docket Entry 14 at 3 n.1).

2

2.
[Plaintiff] has not engaged in substantial gainful
activity since June 1, 2009, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
chronic obstructive pulmonary disease (COPD), obesity,
residuals of a right femur fracture, osteoarthritis of
the knees, lumbar degenerative disc disease, and
depression not otherwise specified.
. . .
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 less than the full range of unskilled
medium work . . . .
[Plaintiff] can stand and walk for 6 hours in an 8-hour
workday, he can sit for 6 hours in an 8-hour workday, and
he can lift and carry, and push and pull 50 pounds
occasionally and 25 pounds frequently. He can frequently
climb ramps and stairs and ladders, ropes, and scaffolds.
[Plaintiff]
must
avoid
concentrated
exposure
to
respiratory irritants including fumes, odors, gases,
du[st], and areas with poor ventilation.
He can
frequently balance, kneel, crouch, and crawl. He has no
limitations in his abilities to stoop. [Plaintiff] has no
manipulative, visual, or communicative limitations.
Mentally, [Plaintiff] is limited to simple, routine, and
repetitive tasks, with frequent, but not continuous,
interaction with supervisors, co-workers, and the public.
. . .
6.
[Plaintiff] is capable of performing his past
relevant work as a janitor, dishwasher, and creeler.
This work does not require the performance of workrelated activities precluded by [Plaintiff’s] residual
functional capacity.
. . .

3

In the alternative, considering [Plaintiff’s] age,
education, work experience, and residual functional
capacity, there are other jobs that exist in significant
numbers in the national economy that [Plaintiff] can
perform.
. . .
7.
[Plaintiff] has not been under a disability, as
defined in the [] Act, from June 1, 2009, through the
date of this decision.
(Tr. 43-52; Docket Entry 14-1 at 13 (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.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).

Hines v.

However, “the scope

of [the Court’s] review of [such a] decision . . . is extremely
limited.”

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

Even given those limitations, the Court should remand this case for
further administrative proceedings.
A.

Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

Instead,

the Court “must uphold the factual findings of the ALJ if they are
supported

by

substantial

evidence

and

were

reached

through

application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).

“Substantial

evidence means ‘such relevant evidence as a reasonable mind might

4

accept as adequate to support a conclusion.’”

Hunter v. Sullivan,

993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 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 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

5

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means the “‘inability to
engage in

any

substantial

gainful

activity

by

reason

of

any

medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months,’” id.
(quoting

42

U.S.C.

§

423(d)(1)(A)).4

“To

regularize

the

adjudicative process, the Social Security Administration has . . .
detailed regulations incorporating longstanding medical-vocational
evaluation policies that take into account a claimant’s age,
education, and work experience in addition to [the claimant’s]
medical

condition.”

Id.

“These

regulations

establish

a

‘sequential evaluation process’ to determine whether a claimant is
disabled.”

Id. (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
to (4) perform [the claimant’s] past work or (5) any other work.”

4

The Act “comprises two disability benefits programs. [DIB] . . . provides
benefits to disabled persons who have contributed to the program while employed.
[SSI] . . . 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

Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).5

A finding adverse to the claimant at any of

several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.

The second step determines if the

claimant is ‘severely’ disabled.

If not, benefits are denied.”

Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, the “claimant is disabled.” Mastro,
270 F.3d at 177. Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.6

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

5

“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

6

“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

179-80.

However, if the 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 claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
experience) to adjust to a new job.”

Hall, 658 F.2d at 264-65.

If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs

available

disabled.

in

the

community,”

the

claimant

qualifies

as

Hines, 453 F.3d at 567.7
B.

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ did not properly evaluate the opinions of two
state

agency

psychologists

and

an

examining

psychologist

in

determining [Plaintiff’s] [RFC]” (Docket Entry 12 at 5 (bold font
omitted));
2)

“[t]he

ALJ

erred

by

failing to

account

for

moderate

limitations in concentration, persistence or pace [(‘CPP’)] in his
RFC finding” (id. at 10 (bold font omitted)); and

7

A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three in
the claimant’s favor, whereas, on the second path, the claimant must prevail at
steps one, two, four, and five. Some short-hand judicial characterizations of
the SEP appear to gloss over the fact that an adverse finding against a claimant
on step three does not terminate the analysis. See, e.g., Hunter, 993 F.2d at
35 (“If the ALJ finds that a claimant has not satisfied any step of the process,
review does not proceed to the next step.”).

8

3) “[s]ubstantial evidence does not support the ALJ’s finding
that [Plaintiff] can perform medium work in light of [Plaintiff’s]
severe COPD” (id. at 11 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 14 at 9-21.)
1. Psychological Opinion Evidence

In Plaintiff’s first issue on review, he faults the ALJ for
failing to “properly evaluate the opinions of . . . state agency
psychologists [Linda O’Neil, Ph.D., and Nancy Y. Herrera, Ph.D.]
and . . . [consultative] examining psychologist [J. Craig Hunt,
Psy.D.] in determining [Plaintiff’s] [RFC].”

(Docket Entry 12 at

5 (bold font omitted).) In particular, Plaintiff alleges that “the
ALJ’s

finding

that

[Plaintiff]

can

frequently

interact

with

supervisors, coworkers, and the public is not consistent with the
opinions of [these] psychological consultants who opined in similar
ways that [Plaintiff] was more limited in his ability to interact
with others than the ALJ found.”
131, 149, 811.)

(Id. at 6 (referencing Tr. 46,

According to Plaintiff, “[s]ince the ALJ did not

explain the apparent contradiction between his RFC finding and the
opinions

of

necessary.”

the
(Id.)

three

psychological

consultants,

remand

is

Plaintiff’s arguments have merit.

Under Social Security Administration regulations and rulings,
an ALJ must evaluate all medical source opinions, as well as
expressly indicate and explain the weight he or she affords to such

9

opinions. See 20 C.F.R. §§ 404.1527(c), 416.927(c) (“Regardless of
its source, [the ALJ] will evaluate every medical opinion [he or
she] receive[s]” and, where an opinion does not warrant controlling
weight, the ALJ must “consider all of the . . . factors [in 20
C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6)] in deciding the
weight [to] give to any medical opinion.” (emphasis added)); Social
Security Ruling 96-6p, Policy Interpretation Ruling Titles II and
XVI: Consideration of Administrative Findings of Fact by State
Agency Medical and Psychological Consultants and Other Program
Physicians and Psychologists at the [ALJ] and Appeals Council
Levels of Administrative Review; Medical Equivalence, 1996 WL
374180, at *1 (July 2, 1996) (“SSR 96-6p”) (“Findings of fact made
by

State

agency

medical

and

psychological consultants

.

.

.

regarding the nature and severity of an individual’s impairment(s)
must be treated as expert opinion evidence . . . . [and] [ALJs]
. . . may not ignore these opinions and must explain the weight
given to these opinions in their decisions.” (emphasis added));
Social Security Ruling 96-8p, Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims, 1996 WL 374184, at *7 (July
2, 1996) (“SSR 96-8p”) (“The RFC assessment must always consider
and address

medical

source

opinions.

If

the

RFC

assessment

conflicts with an opinion from a medical source, the [ALJ] must
explain why the opinion was not adopted.” (emphasis added)).

10

As an initial matter, (and as Plaintiff argues (see Docket
Entry 12 at 7)), doubt exists as to whether the ALJ expressly
weighed the opinions of the state agency psychological consultants.
In

that

regard,

the

only

reference

to

the

state

agency

psychological consultants in the ALJ’s decision appears as follows:
As for the opinion evidence, the [ALJ] notes that the
State agency physicians and psychologists submitted
detailed reports, which included examinations of the
medical evidence of record.
The state physicians
determined that [Plaintiff] could perform medium work
activity. The [ALJ] finds that these opinions were [sic]
consistent with the overall medical record, and
accordingly gives these findings great weight.
(Tr. 51 (emphasis added).)
with

a

reference

to

Although the ALJ opened the paragraph

both

“the

State

agency

physicians

and

psychologists” (id. (emphasis added)), the ALJ actually described
only the physicians’ opinions that Plaintiff “could perform medium
work activity” (id.).

Thus, logically, the ALJ’s subsequent

references to “these opinions” and “these findings” (id. (emphasis
added)) seem more likely to refer to the physicians’ medium work
opinions, than to the opinions of the psychologists that the ALJ
never specifically discussed.
However, the Court need not resolve that ambiguity in the
ALJ’s decision.

Whether the ALJ failed to expressly weigh the

psychological consultants’ opinions at all, or accorded them a
blanket assessment of “great weight” (id.), the ALJ reversibly
erred because, as explained in more detail below, the psychological
consultants’ opinions conflict both with each other and with the
11

RFC.

See Huffman v. Colvin, No. 1:10CV537, 2013 WL 4431964, at *6

(M.D.N.C.

Aug.

14,

2013)

(unpublished)

(Webster,

M.J.)

(“In

attributing substantial weight to the findings of State agency
medical consultants, the ALJ may have only intended to adopt the
exertional

limitations

(i.e.,

light

work)

set

forth

by

the

non-examining State agency physicians, because that is the only
limitation the ALJ included in Plaintiff’s RFC.

If so, the ALJ

erred by ignoring — that is, by failing to accept, reject, or
address — the findings of Drs. Roque and Perkins, the non-examining
state

agency

limitations.

experts

who

considered

Plaintiff’s

[mental]

Alternatively, one might read the ALJ’s decision as

attributing substantial weight to the opinions of all non-examining
State agency experts, including Drs. Roque and Perkins. Under this
interpretation,
egregiously,

the

ALJ

because

still

he

erred,

attributed

and

in

fact

substantial

erred

weight

more

to

the

findings of Drs. Roque and Perkins, but then failed to incorporate
those findings in Plaintiff’s RFC.

Thus, because the ALJ erred in

either event, the undersigned need not resolve any ambiguity
. . . .”), recommendation adopted, slip op. (M.D.N.C. Sept. 10,
2013) (Osteen, Jr., C.J.).
At the initial stage of administrative review, Dr. O’Neil
opined that Plaintiff had moderate limitation in his ability to
interact with the general public and “some difficulty adapting to
changes

in

routine.”

(Tr.

131.)

12

However,

despite

those

limitations,

Dr.

O’Neil

ultimately

concluded

that

Plaintiff

“appear[ed] able to interact appr[opriately] with others” and
remained “[c]apable of simple, routine tasks.”

(Id.)

Dr. O’Neil

did not include any limitations in social interaction or work
stress levels in her mental RFC.

(See Tr. 130-32.)

In comparison,

at the reconsideration level, Dr. Herrera found that Plaintiff
“would

have

some

social

limitations

secondary

to

depression

. . .[,] would likely do best in settings with minimal social
demands[,] . . . [and] would be able to adapt to routine work
demands and stressors within the context of a stable, low-stress
work assignment.”
concluded

that

(Tr.

Plaintiff

149

(emphasis added).)

“retain[ed]

the

[simple, routine tasks] with noted limits.”

ability

Dr.

Herrera

to

perform

(Tr. 150 (emphasis

added).)
In turn, the ALJ’s mental RFC limited Plaintiff “to simple,
routine, and repetitive tasks, with frequent, but not continuous,
interaction with supervisors, co-workers, and the public.” (Tr. 46
(emphasis added).)8

Thus, even assuming the ALJ intended to give

“great weight” to the state agency psychological consultants’
opinions (Tr. 51), the mental RFC adopted by the ALJ contains
social restrictions not present in Dr. O’Neil’s opinions, and lacks

8

“‘Frequent’ means occurring from one-third to two-thirds of the time . . . for
a total of approximately 6 hours of an 8-hour workday.” Social Security Ruling
83-10, Policy Interpretation Ruling Titles II and XVI: Determining Capability to
Do Other Work – the Medical-Vocational rules of Appendix 2, 1983 WL 31251, at *6
(1983).

13

the greater social restrictions and stress-related restriction in
Dr.

Herrera’s

opinions,

i.e.,

the

RFC

conflicts

with

both

consultants’ opinions (compare Tr. 46, with Tr. 131, 149-50).
Moreover, the ALJ offered no explanation for the conflicts between
the mental RFC and the psychological consultants’ opinions.

(See

Tr. 51.)
A

similar

problem

exists

with

the

consultative examiner Dr. Hunt’s opinions.

ALJ’s

assessment

of

The ALJ evaluated Dr.

Hunt’s opinions as follows:
The [ALJ] notes that [Dr. Hunt] submitted a detailed
report, which included psychological testing, a clinical
interview, and observations.
Dr. Hunt opined that
[Plaintiff] could perform simple, routine, repetitive
tasks and understand, retain, and follow instructions.
He noted that [Plaintiff] had adequate to marginal
interpersonal behaviors and might have difficulties
interacting with others. He stated that [Plaintiff] had
adequate to marginal concentration and that he might
have moderate or greater difficulties tolerating the
stress of day-to-day work activities. The [ALJ] finds
that the examination was thorough and consistent with
the evidence of record, and has given these findings
great weight. The substance of these limitations are
included in [Plaintiff’s] [RFC].
(Tr. 51 (emphasis added).) Notwithstanding the ALJ’s praise of Dr.
Hunt’s

report,

the

RFC

does

not,

on

its

face,

contain

the

“substance” of Dr. Hunt’s limitations.
Although Dr. Hunt opined that Plaintiff “appear[ed] to have
the intellectual capacity to perform simple, routine, repetitive
tasks as well as understand, retain, and follow instructions,” he
also posited that Plaintiff’s “[p]sychiatric symptoms may have a

14

negative impact on” those abilities.

(Tr. 811 (emphasis added).)

Thus, contrary to the ALJ’s assessment (see Tr. 51), Dr. Hunt’s
statement does not constitute an unqualified opinion that Plaintiff
remained capable of performing simple, routine, and repetitive
tasks.

In addition, Dr. Hunt felt that Plaintiff “demonstrated

adequate to marginal interpersonal behavior and may have difficulty
interacting effectively with peers, coworkers, and supervisors due
to complications from mood and possible entrenched interpersonal
style.” (Tr. 811 (emphasis added).) Absent additional explanation
from the ALJ (not present here), the RFC’s allowance of frequent
interaction with co-workers, supervisor, and the general public
(see Tr. 46), i.e., interaction with others for up to six hours in
an eight-hour workday, does not harmonize with Dr. Hunt’s opinion
that Plaintiff “demonstrated adequate to marginal interpersonal
behavior” (Tr. 811 (emphasis added)).

Moreover, with regard to

work stress, Dr. Hunt reported that Plaintiff might “have moderate
or greater difficulty tolerating the stress associated with day-today work activity” (id. (emphasis added)), yet the ALJ did not
include any limitations on exposure to work stress in the RFC (see
Tr. 46). Thus, the ALJ failed to explain the conflicts between the
RFC and Dr. Hunt’s opinions.
Defendant first disputes Plaintiff’s arguments by asserting
that “substantial evidence in the record supported the ALJ’s
conclusion

that

Plaintiff

could

15

frequently

interact

with

the

general public, coworkers, and supervisors” (Docket Entry 14 at
11),

as

well

as

citing

to

medical

evidence

and

Plaintiff’s

statements tending to show he did not have significant impairment
in social functioning (id. (citing Tr. 111-12, 314, 407, 464, 498,
575, 583, 585, 596, 598, 600, 613, 655, 740, 751, 795, 808)).
However, Defendant’s
rationalization.

contention

improperly

relies

on

post-hoc

See Securities & Exch. Comm’n. v. Chenery Corp.,

332 U.S. 194, 196 (1947); see also Bray v. Commissioner of Soc.
Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing
principles of administrative law require us to review the ALJ’s
decision based on the reasoning and factual findings offered by the
ALJ — not post hoc rationalizations that attempt to intuit what the
adjudicator may have been thinking.” (citing Chenery)).
On judicial review, the Court must determine whether the
materials on which the ALJ relied in reaching the determinations at
issue provided substantial evidence for those determinations and
whether

the

ALJ

correctly

applied

the

law

in

making

those

determinations; thus the Court may not piece together evidence, not
expressly relied upon by the ALJ, to support the ALJ’s findings.
See Stefanowicz v. Colvin, No. 3:12-CV-11-J-JRK, 2013 WL 1320421,
at *4 (M.D. Fla. Mar. 29, 2013) (unpublished) (“It is not up to a
reviewing court to scour the record to find support for an ALJ’s
decision;

rather,

within.”).

As

the

ALJ

discussed

must
above,

16

support
the

his

ALJ’s

or

her

analysis

decision
of

the

psychological opinion evidence does not supply substantial evidence
to support the mental RFC or follow applicable law, as the ALJ did
not explain the conflicts between that evidence and the RFC or
otherwise provide a logical bridge between the record evidence and
the RFC.
Defendant next contends that “the fact that the ALJ assigned
significant weight to the psychologists’ opinions did not compel
the ALJ to adopt them verbatim or include every one of their
proposed limitations in the RFC finding.”

(Docket Entry 14 at 12

(citing Bacnik v. Colvin, 1:12-CV-801, 2014 WL 3547387, at *4 n.7
(M.D.N.C. Jul. 17, 2014) (unpublished) (Eagles, J.), Wilkinson v.
Commissioner of Soc. Sec., 558 F. App’x 254, 256 (3d Cir. 2014),
and Lambert-Newsome v. Astrue, Civ. No. 11-1141-CJP, 2012 WL
2922717, at *6 (S.D. Ill. Jul. 17, 2012) (unpublished)).) Although
an

ALJ

need

not,

by

virtue

of

crediting

a

medical

source’s

opinions, incorporate all of those opinions verbatim into the RFC,
the ALJ’s decision must still make clear to the reviewing court
which opinions the ALJ adopted, which opinions he or she rejected,
and the reasons therefor.

See SSR 96-8p, 1996 WL 374184, at *7

(“If the RFC assessment conflicts with an opinion from a medical
source, the [ALJ] must explain why the opinion was not adopted.”
(emphasis added)).

Here, the ALJ’s decision does not clarify

whether he even expressly weighed the opinions of the state agency
psychological consultants and, if he did, why he did not adopt the

17

consultants’ mental limitations.

(See Tr. 51.)

Moreover, the ALJ

indicated that he incorporated the “substance” of Dr. Hunt’s mental
limitations into the RFC but, as discussed above, neither included
Hunt’s limitations on social functioning and stress tolerance in
the RFC, nor explained why he rejected them.

(Id.)

Defendant additionally argues that any error by the ALJ in
evaluating the psychological opinion evidence “remains harmless
under the circumstances of this case.” (Docket Entry 14 at 13-14.)
According

to

Defendant,

even

if

the

ALJ

had

incorporated

limitations to occasional interaction with others and a low stress
work environment in the RFC, Plaintiff would still have retained
the capacity to perform his past relevant work as a janitor,
dishwasher,

and

creeler.

(Id.

at

14-15.)

In

that

regard,

Defendant notes that the Dictionary of Occupational Titles (“DOT”)
listings for each of these jobs reflect “Talking” as “Not Present,”
and

the

jobs’

DOT

numbers

“contain[]

a

fifth

digit

of

‘8,’

reflecting the lowest possible level of human interaction that
exists in the labor force” (id. at 14 (citing DOT, No. 323.687-014
(“Cleaner, Housekeeping”), 1991 WL 672783, DOT, No. 318.687-010
(“Kitchen

Helper”),

1991

WL

672755,

DOT,

No.

689.687-030

(“Creeler”), 1991 WL 678437, and DOT, App’x B (“Explanation of
Data, People, and Things”), 1991 WL 688701)), as well as that the
jobs “involve, at most, a few concrete variables in or from
standardized situations” (id. at 15 (citing DOT, No. 323.687-014,

18

1991 WL 672783, DOT, No. 318.687-010, 1991 WL 672755, and DOT, No.
689.687-030, 1991 WL 678437)).

Defendant’s arguments fall short.

Even assuming that Plaintiff’s past jobs could accommodate a
limitation to occasional interaction with others (or Dr. Herrera’s
restriction to a job with “minimal social demands” (Tr. 149)),
Defendant has not shown that those jobs would remain available
given the opinions of Drs. Herrera and Hunt regarding Plaintiff’s
difficulty with tolerating workplace stress (see Tr. 149, 811).
Defendant’s reliance on the jobs’ reasoning development level of
two9 to demonstrate that Plaintiff’s prior work would accommodate
a restriction to a low stress work setting misses the mark.

A

job’s reasoning development level reflects the degree of analytical
ability required by a job, and not the level of stress present in
a job.

See generally DOT, App’x C (“Components of the Definition

Trailer”), § III (“General Educational Development (GED)”), 1991 WL
688702.

Because the DOT does not address the degree of stress

present in a particular job, the ALJ must rely instead on a VE to
testify, based on his or her vocational knowledge, whether a
particular job would accommodate a restriction to a low stress
setting.10
9

A reasoning development level of two requires a worker to “[a]pply commonsense
understanding to carry out detailed but uninvolved written or oral instructions
. . . [and] [d]eal with problems involving a few concrete variables in or from
standardized situations.”
DOT, No. 689.687-030, 1991 WL 678437 (discussing
“Creeler” job demands).

10

For a similar reason, the ALJ’s alternative step five finding, relying on the
Medical-Vocational Guidelines rather than a VE, to deem Plaintiff not disabled
(continued...)

19

In short, because the ALJ failed to explain the conflicts
between the RFC and the opinions of Drs. O’Neil, Herrera, and Hunt,
Plaintiff’s first issue on review warrants remand.
Moreover, Plaintiff has alleged in his second issue on review
that the ALJ failed to account in the RFC for Plaintiff’s moderate
limitation in CPP in violation of Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015).

(See Docket Entry 12 at 11-12.)

In this case,

both state agency psychological consultants opined that, despite
moderate

limitation

in

CPP

(see

Tr.

126,

143),

Plaintiff

“appear[ed] able to maintain attention and concentration to perform
simple, routine, repetitive tasks” (Tr. 131, 149).

The United

States Court of Appeals for the Fourth Circuit recently held that
an

ALJ’s

reliance

on

similar

state

agency

psychological

consultants’ opinions provided substantial support for the ALJ’s
mental RFC and thus “reject[ed] [the plaintiff’s] argument that a
remand [wa]s required under Mascio.” Sizemore v. Berryhill, ___ F.
App’x ___, ___, No. 16-1301, 2017 WL 6374237, at *6 (4th Cir. Dec.
1, 2017).

However, as discussed above, the ALJ’s decision here

does not clarify whether the ALJ expressly weighed the opinions of
the consultants.

(See Tr. 51.)

Thus, upon remand, the ALJ should

expressly weigh the opinions of the state agency psychological
consultants and, if he finds Plaintiff moderately limited in CPP,

10

(...continued)
(see Tr. 52), does not suffice to render harmless the ALJ’s errors in evaluating
the psychological opinion evidence.

20

explain how he accounted for such limitation in the RFC or why
Plaintiff’s particular CPP limitation did not require additional
restrictions (e.g., because the state agency consultants concluded
that Plaintiff could perform necessary functions for certain types
of work for the periods of time required notwithstanding his
particular CPP limitations).
2. COPD
Lastly, Plaintiff maintains that “[s]ubstantial evidence does
not support the ALJ’s finding that [Plaintiff] can perform medium
work in light of [Plaintiff’s] severe COPD.”
11 (bold font omitted).)

(Docket Entry 12 at

In that regard, Plaintiff challenges the

ALJ’s reliance on the opinions of consultative examiners Dr. Peter
Morris and Dr. Amon L. Funderburk that Plaintiff remained capable
of medium work, because the examiners issued their opinions prior
to “March 2013 when [Plaintiff] developed COPD.”
(citing Tr. 51, 379-84, 407-11).)

(Id. at 13

In addition, Plaintiff cites to

record evidence “show[ing] that [Plaintiff’s] COPD is, in fact,
moderate to severe” and “not compatible with work requiring an
ability to lift 25 pounds frequently, 50 pounds occasionally, and
stand or walk six hours out of an eight hour workday.”

(Id. at 15

(citing Tr. 550, 584, 590, 592, 599, 606, 609, 620, 638, 643, 657,
658, 701, 723, 727, 730, 753, 756, 768, 771, 787).)
Plaintiff

notes that

he

submitted

to

the

Appeals

Moreover,
Council

“a

favorable decision on [his] claim for Medicaid benefits . . .

21

[which] determined that [Plaintiff’s] condition was the medical
equivalent of [L]isting 3.03 [(“Asthma”), 20 C.F.R., Pt. 404,
Subpt. P, App’x 1, § 3.03].”

(Id. at 16 (citing Tr. 814-17).)

Plaintiff’s contentions fall short.
The ALJ did give “great weight” to the opinions of Drs. Morris
and Funderburk, which opinions the ALJ found “equate[d] to the
ability to perform medium work activity.”

(Tr. 51.)

As Plaintiff

argues (see Docket Entry 12 at 13), both Dr. Morris’s opinion
(issued on August 11, 2011 (see Tr. 379-84)) and Dr. Funderburk’s
opinion (issued on January 5, 2013 (see Tr. 407-11)) predated
multiple exacerbations of Plaintiff’s COPD symptoms beginning in
February 2013 and continuing throughout 2013 (see, e.g., Tr. 550,
592, 599, 606, 620).
Nevertheless, the ALJ’s reliance on the opinions of Drs.
Morris and Funderburk provides no basis for relief.

Plaintiff’s

primary complaints to Dr. Morris involved knee, thigh, and hip pain
(see Tr. 379) and to Dr. Funderburk gout, kidney disease, and
depression (see Tr. 407).

Thus, the doctors’ examinations focused

on gauging the functional limitations arising from those alleged
impairments rather than from COPD.

(See Tr. 381-83, 408-10.)

Notably, the ALJ discussed both doctors’ opinions in the portion of
his decision where he discussed Plaintiff’s osteoarthritis of the
knees and lumbar degenerative disc disease (see Tr. 47-48) and thus

22

the ALJ did not appear to rely on their opinions to evaluate the
functional impact of Plaintiff’s COPD.
Further, the ALJ cited to substantial evidence to support his
finding that, despite severe COPD, Plaintiff remained capable of
performing a limited range of medium work.

The ALJ also gave

“great weight” to the opinions of state agency medical consultant
Dr. Frank Virgili (Tr. 51), who opined that, despite severe COPD
(see Tr. 143), Plaintiff remained capable of performing a limited
range of medium work (see Tr. 145-47).

Notably, unlike the

opinions of Drs. Morris and Funderburk, Dr. Virgili issued his
opinions on July 10, 2013 (see Tr. 147), after Plaintiff had
already experienced several COPD exacerbations.
Moreover, the ALJ discussed Plaintiff’s testimony regarding
his COPD (see Tr. 46-47) but found that testimony “not fully
credible concerning the severity of his symptoms and the extent of
his limitations,” noting that “[t]he objective medical evidence of
record support[ed] neither the severity nor the extent of the
alleged limitations” (Tr. 50).

Plaintiff does not challenge the

ALJ’s evaluation of Plaintiff’s subjective complaints. (See Docket
Entry 12.)
In addition, the ALJ discussed in a fair amount of detail
Plaintiff’s treatment for COPD spanning from February 2013 to June
2015, including his hospitalizations during exacerbations, his
respiratory

medications,

and

his

23

participation

in

pulmonary

rehabilitation.

(See

Tr.

48-49.)

The

ALJ

concluded

that

Plaintiff’s “exacerbations in 2013 were often due to his cigarette
smoking

or

poor

compliance

with

treatment,”

and

that

the

“exacerbations resolved quickly with medications.” (Tr. 50 (citing
Tr.

412-98,

536-69).)

Beyond

the

conclusory

criticism

that

“[s]ubstantial evidence d[id] not support th[at] finding” (Docket
Entry 12 at 13), Plaintiff did not specifically attack the ALJ’s
observations that Plaintiff’s smoking and non-compliance often
caused his exacerbations and that medications quickly resolved the
exacerbations (see id. at 11-16).

The record also supports the

ALJ’s observations on these points.

(See Tr. 416 (reflecting that

Plaintiff had felt well since his last discharge from hospital
until he smoked), 417 (documenting that Plaintiff had breathed
better until he rode in a car with smoker), 425 (showing treatment
for exacerbation while out of home albuterol and noting “compliance
issues”),

466

exacerbation

(reporting
after

prescriptions),

571

that

failing

Plaintiff

to

(recording

fill
that

any

experienced
of

a

repeat

his

respiratory

Plaintiff’s

respiratory

symptoms improved and stabilized after in-patient steroids and
nebulizers), 602 (indicating that Plaintiff continued to smoke one
cigarette a week in September 2013), 638 (noting that Plaintiff’s
dyspnea showed “significant improvement” after emergency medical
personnel administered nebulizers).)

24

Finally, the ALJ noted that “the latest treatment notes
show[ed] great improvement.”

(Tr. 50 (citing Tr. 629-761).)11

Substantial evidence also supports that finding.

(See Tr. 584

(2/3/14 - reflecting that pulmonary rehabilitation made Plaintiff
feel better and that he remained abstinent from tobacco), 590
(1/6/14 - showing that Plaintiff reported “doing good” and that he
did not even think about cigarettes), 576-77 (3/11/14 - documenting
no shortness of breath and that Plaintiff continued to abstain from
smoking), 708 (9/17/14 - reporting no shortness of breath and
describing Plaintiff’s COPD as “stable”), 713 (10/28/14 - noting
that Plaintiff only used his inhaler “every now and then”), 737
(3/3/15 - describing Plaintiff’s breathing as “pretty good” and
indicating that Plaintiff hardly needed his albuterol anymore), 764
(5/22/15 - recording that Plaintiff denied shortness of breath and
only used his albuterol as needed but not on a daily basis).)
In sum, the ALJ supported the RFC finding that Plaintiff
remained able to perform a limited range of medium work with
substantial evidence and Plaintiff’s instant challenge thus lacks
merit.

11

The ALJ’s citation to Exhibit 14F to support his finding that more recent
treatment notes showed that Plaintiff’s COPD had improved likely constitutes a
typographical error. (See Tr. 50.) Exhibit 14F contains the RFC assessment of
Dr. Melanie Martin (see Tr. 758-61), to which the ALJ afforded “no weight” (Tr.
51). The ALJ probably intended to cite to Exhibit 15F, which contains the most
recent treatment notes of record from Wake Forest Baptist Health (see Tr. 762806).

25

III.

CONCLUSION

Plaintiff has established an error warranting remand regarding
the mental aspects of his RFC.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be vacated and that the matter be remanded
under

sentence

four

of

42

U.S.C.

§

405(g),

for

further

administrative proceedings to properly address the psychological
opinion

evidence,

adopt

an

RFC

logically

supported

by

that

evidence, and to assess Plaintiff’s capacity for past relevant work
or other available work.

As a result, Plaintiff’s Motion for

Judgment (Docket Entry 11) should be granted in part (i.e., to the
extent it requests remand), and Defendant’s Motion for Judgment on
the Pleadings (Docket Entry 13) should be denied.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
December 19, 2017

26