NOT RECOMMENDED FOR PUBLICATION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 postchemotherapy 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 
No. 23-3889, Kinney v. Comm’r of Soc. Sec.

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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 fivestep 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, chemotherapyinduced 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.