DONATHAN v. BERRYHILL

Filing 15

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 6/15/2018; 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 include reevaluation of the opinions of Drs. Kirkland and Hunt in accordance with 20 C.F.R. §§ 404.1527, 416.927, SSR 965p, and other applicable authority. As a result, Plain tiff's Motion for Judgment on the Pleadings (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. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOE DONATHAN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

1:17CV821

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Joe Donathan, 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 1.)

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

Memorandum),

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
July 1, 2011.

(Tr. 188-202.)

Upon denial of those applications

initially (Tr. 60-87, 118-23) and on reconsideration (Tr. 88-117,

124-27, 130-34), Plaintiff requested a hearing de novo before an
Administrative Law Judge (“ALJ”) (Tr. 137-38).

Plaintiff, who

proceeded through counsel, Plaintiff’s daughter, and a vocational
expert (“VE”) testified at the hearing.

(Tr. 27-59.)

The ALJ

subsequently ruled that Plaintiff did not qualify as disabled under
the Act.

(Tr. 8-21.)

The Appeals Council thereafter denied

Plaintiff’s request for review (Tr. 1-5, 186-87, 296-97), 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 December 31, 2016.
2.
[Plaintiff] has not engaged in substantial gainful
activity since July 1, 2011, the alleged onset date.
3.
[Plaintiff] has the following severe impairments:
degenerative disc disease; major depressive disorder,
recurrent, moderate to severe; generalized anxiety
disorder; and borderline intellectual functioning.
. . .
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 light work . . . with exceptions: He
can walk for two hours.
He requires the use of an
assistive device. He can occasionally reach overhead,
bilaterally. He can occasionally climb ramps and stairs.
He can never climb ladders, ropes, or scaffolds. He can
2

occasionally balance. He can occasionally stoop, kneel,
crouch, or crawl.
He is limited to hearing and
understanding
simple,
oral
instructions
and
to
communicating simple information. He can avoid ordinary
hazards in the work place, such as boxes on the floor,
doors ajar, etc. He is limited to occasional exposure to
unprotected heights and moving mechanical parts. He can
occasionally operate a motor vehicle. He is limited to
performing simple, routine and repetitive tasks.
He
cannot perform work at a production rate pace. He can
make simple, work-related decisions. He can occasionally
respond appropriately to coworkers and the public.
. . .
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.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from July 1, 2011, through the
date of this decision.
(Tr.

13-20

(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).

3

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
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

4

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
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)).1

“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]

1

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).

5

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

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

2

“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

is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”

Id. at 179.3

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.
179-80.

Id. at

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 567.4

3

“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.

4

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,
(continued...)

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’s RFC does not match the VE hypothetical upon
which [the ALJ’s] Step 5 finding is based” (Docket Entry 12 at 4
(bold font and single-spacing omitted)); and
2) “[t]he ALJ erred in his assessment of the medical opinion
evidence” (id. at 7 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(Docket Entry 14 at 8-17.)

1. Concordance of RFC and Hypothetical Question
In Plaintiff’s first issue on review, he contends that “[t]he
ALJ’s RFC does not match the VE hypothetical upon which [the ALJ’s]
Step 5 finding is based.”

(Docket Entry 12 at 4 (bold font and

single-spacing omitted).)

In particular, Plaintiff asserts that

“the ALJ found [in the RFC] that [Plaintiff] could ‘occasionally
respond appropriately to coworkers and the public’ (id. (citing Tr.
16) (emphasis added)), but “then denied [Plaintiff’s] claim at Step
5 of the SEP based upon the testimony of a VE” responding to “a
hypothetical

that

stated

[Plaintiff]

could

‘only occasionally

respond and interact with co-workers and the public’” (id. (citing
Tr. 55) (emphasis added)).

Thus, Plaintiff points out that the

4

(...continued)
review does not proceed to the next step.”).

8

“hypothetical did not say that [Plaintiff] could only occasionally
respond appropriately with co-workers and the public as the ALJ
found in his RFC assessment” (id. at 5 (emphasis in original)), and
that the ALJ’s omission qualifies as “critical[,]” because “[t]he
basic mental demands of competitive, remunerative, unskilled work
include the abilit[y] on a sustained basis to . . . respond
appropriately to supervision[ and] coworkers” (id. (quoting Social
Security Ruling 85-15, Titles II and XVI: Capability to Do Other
Work — the Medical-Vocational Rules as a Framework for Evaluating
Solely Nonexertional Impairments, 1985 WL 56857, at *4 (1985) (“SSR
85-15”))

(emphasis

supplied

by

Plaintiff)).

According

to

Plaintiff, “[o]nly being able to occasionally respond appropriately
to coworkers and the public constitutes a ‘substantial loss’ of the
ability to meet this basic work demand” (id. at 6 (quoting SSR 8515, 1985 WL 56857, at *4, and citing Social Security Ruling 83-10,
Titles II and XVI: Determining Capability to Do Other Work – the
Medical-Vocational Rules of Appendix 2, 1983 WL 31251, at *5 (1983)
(defining “occasional” as occurring from very little up to onethird of a workday)).)

Plaintiff’s arguments fall short.

As an initial matter, and as the Commissioner points out,
“Plaintiff [does not] explain how the hypothetical and RFC social
restrictions differ in any meaningful manner” (Docket Entry 14 at
9), because, “[i]f a worker has to respond and interact at work,
the VE is obviously aware that this social functioning must be done

9

appropriately for the person to adequately perform the basic
requirements of the job” (id. at 10 (citing 20 C.F.R. §§ 404.1522,
416.922) (emphasis supplied by the Commissioner)).
Moreover,

a

limitation

to

occasionally

responding

appropriately to co-workers and the public does not constitute a
“substantial loss” of ability to perform that mental work demand,
as shown by the definition of “[s]ubstantial loss” in the Program
Operations Manual System (“POMS”):
“Substantial loss” cannot be precisely defined. It does
not necessarily relate to any particular adjective,
number, or percentage. In practical terms, an individual
has a substantial loss of ability to perform a basic
mental activity when he or she cannot perform the
particular activity in regular, competitive employment
but, at best, could do so only in a sheltered work
setting where special considerations and attention are
provided.
POMS DI 25020.010A.3.b (Mental Limitations), https://secure.ssa.
gov/apps10/poms.nsf/lnx/0425020010) (emphasis added) (last accessed
June 8, 2018); see also Wright v. Colvin, No. 1:15-CV-00415(MAT),
2017 WL 6616378, at *4 (W.D.N.Y. Dec. 27, 2017) (unpublished)
(dismissing the plaintiff’s contention that occasional ability to
make work-related decisions amounted to “substantial loss” of such
ability under POMS DI 25020.010A.3.b., because that POMS section
“expressly notes that ‘[s]ubstantial loss cannot be precisely
defined . . . and . . . does not necessarily relate to any
particular adjective, number, or percentage[]’ [and t]hus, the
adjective ‘occasional’ does not lead to an automatic finding of

10

disability”).

The ALJ clearly did not find in the RFC that

Plaintiff could only respond and interact with coworkers and the
public “in a sheltered work setting where special considerations
and attention are provided,” POMS DI 25020.010A.3.b.

(See Tr. 15-

16.)
Furthermore, the ALJ asked the VE whether jobs existed in
significant numbers in the national economy that Plaintiff could
perform

if

limited

to,

inter

alia,

occasional

response

to/interaction with co-workers and the public (see Tr. 54-55), and
the VE testified that Plaintiff could perform the jobs of small
parts

assembler,

electronics

assembler,

products assembler (see Tr. 55-56).5

and

plastic

hospital

The ALJ adopted the VE’s

testimony, and found, at step five of the SEP, that Plaintiff could
perform

those

three

jobs

notwithstanding

the

limitation

to

occasional response to/interaction with co-workers and the public.
(See Tr. 20.)

The VE’s testimony thus undermines Plaintiff’s

contention that the limitation to occasional interaction caused a
“substantial loss” in his ability to perform that mental demand and
therefore disabled him.

See Rogers v. Colvin, No. 3:15-5938-DWC,

5

The codes in the Dictionary of Occupational Titles (“DOT”) for the three jobs
cited by the VE (and adopted by the ALJ at step five of the SEP) contain a fifth
digit of “8,” DOT, No. 706.684-022 (Assembler, Small Products I), 1991 WL 679050;
DOT, No. 726.687-010 (Electronics Worker), 1991 WL 679633; DOT, No. 712.687-010
(Assembler, Plastic Hospital Products), 1991 WL 679245, reflecting the lowest
possible level of human interaction that exists in the labor force, see DOT,
App’x B (Explanation of Data, People, and Things), 1991 WL 688701.
“This
designated level of interaction is compatible with an RFC limiting a claimant to
only occasional contact with coworkers, supervisors, and the public.” Cobb v.
Colvin, No. 2:13CV115TCM, 2014 WL 6845850, at *19 (E.D. Mo. Dec. 3, 2014)
(unpublished).

11

2016 WL 3344573, at *4 (W.D. Wash. June 15, 2016) (unpublished)
(rejecting the plaintiff’s argument that she suffered “substantial
loss” in ability to perform mental demands of work under POMS DI
25020.010A.3.b., where VE testified that RFC limiting Plaintiff’s
contact with males and requiring supportive supervisor caused 30%
erosion of occupational base, “thereby leaving . . . 70% of jobs
existing in the national economy available to [the p]laintiff”);
McPeters v. Astrue, No. CIV.A.1:07-CV-0112-C, 2008 WL 4414542, at
*11 (N.D. Tex. Sept. 30, 2008) (unpublished) (holding that RFC with
restrictions to “one- and two-step work instructions and . . . only
incidental contact with the public and no collaboration with
co-workers”

did

“not

encompass

findings

indicating

that

[the

p]laintiff ha[d] experienced a substantial loss in the ability to
perform the basic mental demands of unskilled work[,]” where VE
testified

that

individual

with

those

limitations

could

still

perform jobs in the national economy).
In sum, Plaintiff’s first assignment of error entitles him to
no relief.
2. Opinion Evidence
Next,

Plaintiff

maintains

that

“[t]he

assessment of the medical opinion evidence.”
7 (bold font omitted).)

ALJ

erred

in

his

(Docket Entry 12 at

In particular, Plaintiff argues that

“[t]he ALJ did not address how each of [consultative examiner Dr.
Kimberly A. Kirkland’s] opined limitations were weighed in [the

12

ALJ’s] decision and why he accepted or rejected them[,] . . . [but
instead] only stated that [Dr. Kirkland’s opinion] ‘deserve[d] some
weight[,]’” which “[wa]s too vague to be useful in tracking the
ALJ’s logic.” (Id. at 9 (citing Tr. 18).) Additionally, Plaintiff
asserts that, “[d]espite giving [consultative examiner Dr. J. Craig
Hunt’s] opinion ‘substantial weight’ (id. (citing Tr. 18)), . . .
the ALJ included no limitation for appropriate interactions with
supervisor in his RFC, and Dr. Hunt felt [Plaintiff] would be
moderately to markedly limited in this area” (id. (citing Tr. 1516)

(internal

citation

omitted)).

In

one

critical

respect,

Plaintiff’s contentions have merit.
Consultative examiners do not constitute treating sources
under

the

regulations,

see

20

C.F.R.

§§

404.1527(c)(2),

416.927(c)(2), and thus their opinions, as a general proposition,
do not warrant controlling weight, Turberville v. Colvin, No.
1:11CV262,

2014

WL

1671582,

at

*6

(M.D.N.C.

Apr.

23,

2014)

(unpublished), recommendation adopted, slip op. (M.D.N.C. May 15,
2014) (Eagles, J.).
consultative

However, the ALJ must nevertheless evaluate

opinions

using

the

factors

outlined

in

the

regulations, and expressly indicate and explain the weight he or
she affords to such 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

13

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 96–5p, Medical
Source Opinions on Issues Reserved to the Commissioner, 1996 WL
374183, at *5 (July 2, 1996) (“SSR 96–5p”) (noting that ALJs “must
weigh medical source statements . . . [and] provid[e] appropriate
explanations for accepting or rejecting such opinions” (emphasis
added)).
On November 12, 2013, Dr. Kirkland conducted a consultative
psychological examination of Plaintiff (Tr. 346-51), reporting
Plaintiff’s
recurrent,

diagnoses
severe,

as

without

major

depressive

psychotic

disorder,

features;

pain

likely
disorder

associated with both psychological features and a general medical
condition; and mild intellectual disability (provisional diagnosis)
(see Tr. 350-51), which caused symptoms of “depressed mood, loss of
interest in pleasurable activities, lethargy, hopelessness, and
insomnia” (Tr. 351).

As a result of those impairments, Dr.

Kirkland concluded as follows:
Regarding [Plaintiff’s] ability to work, given his
current level of emotional disturbance, [he] would likely
be unable to relate appropriately to fellow workers and
supervisors; it is also unlikely that he could tolerate
the day-to-day stress and pressure associated with daily
work activity.
His reported pain level would likely
interfere with his work functioning. [Plaintiff] appears

14

to have difficulty understanding, retaining, and
following instructions. He cannot sustain concentration
and lacks mental ability to perform simple repetitive
tasks.
(Tr. 351.)
The ALJ recited all but the last sentence of the above-quoted
portion of

Dr.

Kirkland’s

evaluation

(see

Tr.

18),

and then

concluded that Dr. Kirkland’s “opinion deserve[d] some weight
because Dr. Hunt’s opinion [wa]s more persuasive” (id.). Plaintiff
argues that “[t]he ALJ did not address how each of [Dr. Kirkland’s]
opined limitations were weighed in [the ALJ’s] decision and why he
accepted or rejected them[,] . . . [but instead] only stated that
[Dr. Kirkland’s opinion] ‘deserve[d] some weight[,]’” which “[wa]s
too vague to be useful in tracking the ALJ’s logic.” (Docket Entry
12 at 9 (emphasis added) (citing Tr. 18).)
As an initial matter, the Court can meaningfully review “how
each of [Dr. Kirkland’s] opined limitations were weighed in [the
ALJ’s] decision” (id. (emphasis added)).

Comparison of the mental

RFC adopted by the ALJ with Dr. Kirkland’s opinions makes clear the
ALJ

partially

rejected

her

credited

most

opinion

that

of

Dr.

Kirkland’s

Plaintiff

could

opinions,
not

but

“sustain

concentration and lack[ed] [the] mental ability to perform simple
repetitive tasks” (Tr. 351).

(Compare Tr. 15-16, with Tr. 351.)

For example, as the ALJ gave “some weight” (Tr. 18) to Dr.
Kirkland’s opinion that Plaintiff “would likely be unable to relate
appropriately to fellow workers and supervisors” (Tr. 351), the ALJ
15

included in the RFC that Plaintiff could “occasionally respond
appropriately to coworkers and the public” (Tr. 16).6

Similarly,

the ALJ partially credited Dr. Kirkland’s opinion that Plaintiff
likely could not “tolerate the day-to-day stress and pressure
associated with daily work activity” (Tr. 351) by precluding
“production rate pace” jobs

and restricting Plaintiff to “simple,

work-related decisions” (Tr. 15-16).

Further, to accommodate, in

part, Dr. Kirkland’s opinion that Plaintiff “appear[ed] to have
difficulty understanding, retaining, and following instructions
(Tr. 351), the ALJ limited Plaintiff to simple, routine, repetitive
tasks (“SRRTs”) (Tr. 15).
However,

the

ALJ

did not

explain

why

he

discounted

Dr.

Kirkland’s opinions as less persuasive than those of Dr. Hunt. The
ALJ did not discuss any of Dr. Kirkland’s findings on examination
in his decision (see Tr. 16-19), merely recited Dr. Kirkland’s
opinions without comment, and provided no rationale at all for

6

Although the ALJ did not include in the RFC or hypothetical question any
specific restrictions on Plaintiff’s interaction with supervisors (see Tr. 15-16,
54-56), as discussed above, the DOT codes for the three jobs cited by the VE (and
adopted by the ALJ at step five of the SEP) contain a fifth digit of “8,” DOT,
No. 706.684-022 (Assembler, Small Products I), 1991 WL 679050; DOT, No. 726.687010 (Electronics Worker), 1991 WL 679633; DOT, No. 712.687-010 (Assembler,
Plastic Hospital Products), 1991 WL 679245, reflecting the lowest possible level
of human interaction that exists in the labor force, including (as concerns
supervisors) “[a]ttending to the work assignment instructions or orders of [a]
supervisor . . . [with n]o immediate response required unless clarification of
instructions or orders is needed,” see DOT, App’x B (Explanation of Data, People,
and Things), 1991 WL 688701 (emphasis added).
“This designated level of
interaction is compatible with an RFC limiting a claimant to only occasional
contact with coworkers, supervisors, and the public.” Cobb, 2014 WL 6845850, at
*19 (emphasis added).

16

finding those opinions less persuasive than Dr. Hunt’s opinions
(see Tr. 18).
Moreover, the ALJ’s analysis of Dr. Hunt’s opinions also does
not elucidate why the ALJ found Dr. Hunt’s opinions more persuasive
than those of Dr. Kirkland.
Hunt

completed

a

(See id.)

consultative

On September 6, 2016, Dr.

psychological

examination

of

Plaintiff (Tr. 437-42), reporting Plaintiff’s diagnoses as major
depressive disorder, recurrent, moderate to severe; generalized
anxiety disorder with panic; mild cannabis use disorder; rule out
mild alcohol use disorder; and rule out borderline intellectual
functioning (Tr. 441).

Dr. Hunt offered the following opinions:

[Plaintiff] appears to have the intellectual capacity to
perform [SRRTs] . . . . He demonstrated marginal to poor
interpersonal behavior and could have moderate to marked
difficulty interacting effectively with peers, coworkers,
and supervisors . . . . He could have moderate to marked
difficulty tolerating the stress associated with day-today work activity . . . . [H]e appears capable of
conforming to social standards and complying with rules
and regulations, as well as, cooperating with authority
figures.
(Tr. 442 (emphasis added).)
As with Dr. Kirkland’s opinions, the ALJ failed to discuss any
of Dr. Hunt’s examination findings in his decision (see Tr. 16-19),
and merely recited, without comment, all but the last sentence of
the above-quoted portion of Dr. Hunt’s evaluation (see Tr. 18).
The

ALJ

then

concluded

that

Dr.

Hunt’s

“opinion

deserve[d]

substantial weight because it was based on a single evaluation of
[Plaintiff,]” and because “Dr. Hunt cautioned that his conclusions
17

were

‘offered

with

mild

to

moderate

reservations’

due

to

[Plaintiff’s] ‘possibly evasive’ responses during the evaluation.”
(Id. (emphasis added) (quoting Tr. 441).)
ALJ’s

stated

rationales

for

affording

However, both of the
Dr.

Hunt’s

opinions

“substantial weight” constitute non sequiturs (id.), as a medical
source’s one-time evaluation and reservations regarding his or her
own opinions would typically qualify as reasons for affording less
weight to that source’s opinions, see, e.g., McKenzie v. Colvin,
No. CIV. TMD 13-1026, 2014 WL 3955588, at *11 (D. Md. Aug. 12,
2014) (unpublished) (holding that “the ALJ reasonably discounted
the opinion of [a physician] as a one-time consultative examiner”);
Courtney v. Colvin, No. 11-CV-176-WMC, 2014 WL 218219, at *5 (W.D.
Wis. Jan. 21, 2014) (unpublished) (finding that ALJ provided “good
reason” for discounting occupational therapist’s opinion where
therapist “openly acknowledged that she may not have obtained an
accurate representation of the [claimant’s] functioning”).
The Commissioner argues that “[s]ubstantial evidence supports
the ALJ’s finding that Dr. Hunt’s opinion was more persuasive than
Dr. Kirkland’s opinion.”
that

argument,

evaluation

was

the

(Docket Entry 14 at 14.)

Commissioner

supported

with

contends

more

that

comprehensive

In support of
“Dr.

Hunt’s

testing

and

reporting than that of Dr. Kirkland[,] Dr. Hunt’s evaluation was
three years after Dr. Kirkland’s mental assessment and included a
review of Dr. Kirkland’s report[,] . . . Dr. Hunt’s testing of

18

Plaintiff

and

Kirkland[,]
incomplete

report

Dr.
and

were

Kirkland
that

more

detailed

acknowledged

Plaintiff

than

that

appeared

those

of

Dr.

testing

was

exaggerate

his

her

to

symptoms[,] . . . [and] Dr. Hunt completed a medical source
statement [but] Dr. Kirkland did not.”

(Id. at 14-15 (citing Tr.

346, 349-50, 351, 437, 439-41, 441-42, 445-47) (internal citations
omitted).)
Significantly, however, the ALJ in this case did not endorse
any of the Commissioner’s rationales in assigning Dr. Kirkland’s
opinions less weight than Dr. Hunt’s opinions.

(See Tr. 18.)

The

Court may not consider such post-hoc rationalizations for the ALJ’s
decision-making.

See Radford v. Colvin, 734 F.3d 288, 294 (4th

Cir. 2013) (rejecting Commissioner’s argument in part because it
consisted of “a post[-]hoc rationalization”) (citing Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)); 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 [ALJ] may have been thinking.”) (citing
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)); Alexander v.
Colvin, Civil Action No. 9:14–2194–MGL–BM, 2015 WL 2399846, at *6
(D.S.C. May

19,

2015)

(unpublished)

19

(rejecting

Commissioner’s

argument as “only a post hoc rationalization for upholding the
decision, since that is not actually what the ALJ did”).
In sum, Petitioner has demonstrated grounds for remand arising
from the ALJ’s evaluation of the opinions of Drs. Kirkland and
Hunt.
III.

CONCLUSION

Plaintiff has established an error warranting remand.
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 include reevaluation of the opinions
of Drs. Kirkland and Hunt in accordance with 20 C.F.R. §§ 404.1527,
416.927, SSR 96–5p, and other applicable authority.

As a result,

Plaintiff’s Motion for Judgment on the Pleadings (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
June 15, 2018

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