Kristin Kinney v. Commissioner of Social Security

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0221n.06
No. 23-3889
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KRISTIN KINNEY,
Plaintiff-Appellant
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Kristin Kinney challenges the denial of her Social
Security disability insurance benefits, arguing that the administrative law judge (ALJ) erred in
failing to explain the conflict between his residual functional capacity (RFC) finding and a medical
source he found persuasive. The district court found no error in the ALJ’s analysis. We
REVERSE.
I.
Kinney suffers from chronic pain and other physical impairments, including carpal tunnel
syndrome, hip pain, and cervical myeloradiculopathy. She has also been diagnosed and treated
for a range of mental illnesses, including severe depression and anxiety. Some of her medical
issues arose after she was diagnosed with breast cancer in 2013: she suffers from post-
chemotherapy pain and depression. The administrative record includes a history of mental-health
treatment and assessments from several doctors regarding the impact Kinney’s impairments have

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on her ability to work. In November 2020, Kinney applied for Social Security disability benefits
based on these impairments.
The claim was denied, and Kinney requested reconsideration, which was also denied. At
the reconsideration level, Kinney’s mental health was evaluated by Akanksha Dutt, Psy.D, a state
agency psychologist. Dutt offered her opinion on Kinney’s mental health and corresponding
limitations, concluding that
Claimant’s [Kinney’s] psych concerns will interfere with her ability to always be
present in the moment. Variability in the claimant’s psychological symptoms will
impact her ability to complete a normal workday/workweek, but not to the point of
causing excessive disruptions. Claimant retains the ability to complete tasks
without a sustained production pace or stringent daily quota and in a setting where
there is some flexibility as to the scheduling of breaks.
R.5, PageID 146.
Kinney requested a hearing before an ALJ, and the ALJ held a remote hearing. Kinney
was represented at the hearing and testified. She answered questions about her living and work
arrangements, as well as her heath issues and their impact on work and daily tasks. A vocational
expert (VE), Paula Zinsmeister, also testified. The ALJ described a hypothetical individual to the
VE:
[A]n individual of [Kinney’s] age, education, and experience, at the residual
functional capacity for light work. Can frequently climb ramps and stairs,
occasionally climb ladders, ropes, or scaffolds. Frequently stoop, kneel, crouch,
and crawl. Avoid concentrated exposure to vibration. Avoid all exposure to
unprotected heights, and heavy, moving machinery. No commercial driving.
Frequently handle and finger bilaterally. Can understand, remember, and carry out
simple instructions. Perform simple, routine, and repetitive tasks, but not at a
production rate pace, such as assembly line. Can tolerate few changes in the
workplace—in the work setting, defined as routine job duties that remain static, and
are performed at a stable, predictable work environment, and can adapt to routine
changes in the workplace that are infrequent and easily explained.

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Id. at PageID 91–92. In response to that hypothetical, the VE testified that such an individual
could work as a cashier, cleaner, or routing clerk, and that there were hundreds of thousands of
those jobs in the national economy.
The ALJ and Kinney’s attorney asked the VE questions about the impact that taking breaks
might have on Kinney’s employment. The VE testified that, if the individual “needed to lay down
for two hours a day, beyond normal breaks,” he or she would not be able to perform those jobs.
Id. at PageID 94. Normal breaks consist of two fifteen-minute breaks and one thirty-minute lunch
break. And responding to a question from Kinney’s attorney, the VE agreed that if “an individual
would require flexibility, with regards to the time and duration of the lunch and break periods,
ability to kind of adjust those to their schedule,” that would be “something that would normally
require an accommodation by the employer.” Id. at PageID 95.
The ALJ issued a written decision finding Kinney not disabled. At Step One of the five-
step analysis ALJs are required to perform in Social Security cases, the ALJ found that, although
Kinney had engaged in substantial gainful activity for periods of time during the relevant time
period, there was at least a twelve-month period without substantial gainful activity. At Step Two,
the ALJ found that Kinney had several severe impairments: major depressive disorder, anxiety,
attention deficit hyperactivity disorder, polysubstance abuse—alcohol and cocaine, chemotherapy-
induced neuropathy, total right hip replacement, and degenerative disc disease from C5-C7. At
Step Three, he determined that Kinney did not have an impairment or combination of impairments
that met or medically equaled the severity of any of the impairments listed in 20 C.F.R. 404,
Subpart P, Appendix 1.
The ALJ also described two state agency medical consultants’ opinions. Addressing Dutt’s
opinion, the ALJ said Dutt

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opined that [Kinney] was able to complete tasks without a sustained production
pace or stringent daily quota, in a setting where there is some flexibility in
scheduling of breaks; could adapt and manage in a structured and predictable work
setting, where major changes are explained in advance and she is given time to
adjust to new expectations.
Id. at PageID 47. The ALJ concluded that both opinions “are generally consistent with and
supported by the record as a whole, and are found persuasive.” Id.
Based on the opinions of the state medical consultants, the ALJ identified an RFC almost
identical to the hypothetical individual he described to the VE at the hearing. Id. at PageID 40.
The ALJ incorporated the limitations recommended by the state medical consultants in the RFC,
with the exception of Dutt’s opinion that Kinney could work “in a setting where there is some
flexibility in scheduling of breaks.” Id. at PageID 40.
At Step Four, the ALJ determined that Kinney could not perform any of her past relevant
work. And at Step Five, he concluded that, “[c]onsidering [Kinney’s] age, education, work
experience, and residual functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform,” specifically, cashier, clerk, and routing clerk—
the jobs the VE testified the ALJ’s hypothetical individual would be able to perform. Id. at PageID
48. Accordingly, the ALJ concluded that Kinney was not disabled.
Kinney filed an administrative appeal, which was rejected. She then filed the present
action, arguing that the ALJ failed to properly account for Dutt’s opinion that Kinney would need
a work setting with flexible break scheduling. The magistrate judge rejected her claim, and
following Kinney’s objections, the district court affirmed the ALJ’s decision.
Kinney now appeals.

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II.
Kinney raises only one issue on appeal: whether the ALJ failed to properly account for
Dutt’s opinion that Kinney would need to work “in a setting where there is some flexibility as to
the scheduling of breaks.” R.5, PageID 146.
A.
In reviewing decisions by the Commissioner in Social Security disability cases, this court
asks only if the Commissioner’s decision is supported by substantial evidence and if it was made
pursuant to proper legal standards. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). “Substantial evidence requires ‘more than a mere scintilla’ but less than a preponderance;
substantial evidence is such ‘relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). But even if the Commissioner’s decision
may be justified based on the record, we “find a lack of substantial evidence” if the ALJ “fails to
follow agency rules and regulations.” Id.
B.
Kinney argues that, having concluded that Dutt’s opinion was persuasive, the ALJ was
required to either incorporate the “flexible break schedule” limitation into Kinney’s RFC or
explain its omission. We agree.
An ALJ need not incorporate every limitation from a medical source’s recommendation,
even if it finds that medical source to be persuasive. See Reeves v. Comm’r of Soc. Sec., 618 F.
App’x 267, 275 (6th Cir. 2015). However, under Social Security Ruling 96-8p, if the ALJ’s “RFC
assessment conflicts with an opinion from a medical source, the [ALJ] must explain why the
opinion was not adopted.” Here, the ALJ recited the limitations recommended by Dutt, including

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that Kinney required a flexible break schedule, and noted that he found those limitations to be
“consistent with and supported by the record as a whole” and “persuasive.” R.5, PageID 46–47.
However, the ALJ—without explanation—then omitted that limitation from his RFC and his
hypothetical to the VE. Without any limitation related to flexible break scheduling, the RFC
conflicted with Dutt’s medical opinion concluding such flexibility would be necessary, and the
ALJ was obligated to explain the omission. See Dunlap v. Comm’r of Soc. Sec., No. 20-4179,
2021 WL 5371401, at *7 (6th Cir. Sept. 20, 2021) (order). The failure to either incorporate the
limitation or explain its omission was an error.
The Commissioner argues that, even if the ALJ erred in failing to address the conflict
between Dutt’s opinion and Kinney’s RFC, any error was harmless because the ALJ’s decision
was supported by substantial evidence. But we “find a lack of substantial evidence” if the ALJ
“fails to follow agency rules and regulations,” Miller, 811 F.3d at 833, and the ALJ failed to follow
Social Security Ruling 96-8p.1
And “[i]n order for a vocational expert’s testimony in response to a hypothetical question
to serve as substantial evidence in support of the conclusion that a claimant can perform other
work, the question must accurately portray a claimant’s physical and mental impairments.” Ealy
v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). Given the ALJ’s finding that Dutt’s
opinion was persuasive and supported by the record, and his failure to explain why he chose to
omit the flexible break limitation from the RFC, there is no way for this court to know if the RFC
accurately portrayed Kinney’s impairments and whether the VE’s opinion reflected her true
1 “Social Security Rulings are interpretations by the Social Security Administration of the Social Security Act that . . .
are binding . . . on ALJs when they are adjudicating [Social Security] cases.” Rogers v. Kijakazi, 62 F.4th 872, 876
n.2 (4th Cir. 2023) (cleaned up); see also 20 C.F.R. § 402.35(b)(1). The Commissioner does not argue that SSR 96-
8p is inapplicable.

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employability. So although the ALJ was not required to incorporate the flexible break scheduling
limitation, the failure to do so without explaining its omission warrants reversal.
III.
We accordingly REVERSE and REMAND for further proceedings consistent with this
opinion.

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