McClure v. Kijakazi

Filing 17

ORDER - Having carefully reviewed the administrative record and the briefs submitted by the parties, the court orders the case remanded to the Commissioner for further proceedings consistent with this Order. Signed by US Magistrate Judge Robert B. Jones, Jr. on 6/3/2024. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:23-CV-287-RJ
LLOYD CALVIN MCCLURE,
Plaintiff/Claimant,
V.

ORDER

MARTIN O'MALLEY,
Commissioner of Social Security,
Defendant.

This matter is before the court on the parties' brie~s filed pursuant to the Supplemental
Rules for Social Security Actions. [DE-12, -15]. Claimant Lloyd Calvin McClure ("Claimant")
filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the
denial of his application for a period of disability and Disability Insurance Benefits ("DIB").
Claimant filed a response to the Commissioner's brief, [DE-16], the time for further responsive
briefing has expired, and the matter is ripe for adjudication. Having carefully reviewed the
administrative record and the briefs submitted by the parties, the court orders the case remanded
to the Commissioner for further proceedings consistent with this Order.
I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on March 3,
2020, alleging disability beginning July 27, 2018. (R. 14, 435- 38). His claim was denied
initially and upon reconsideration.

(R. 14, 294- 322).

A telephonic hearing before an

Administrative Law Judge ("ALJ") was held on November 2, 2022, at which Claimant,
represented by counsel, and a vocational expert ("VE") appeared and testified. (R. 33-62). On

November 15, 2022, the ALJ issued a decision denying Claimant's request for benefits. (R. 1132). After the Appeals Council denied Claimant's request for review, (R. 1-6), he filed a
complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under
the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether
substantial evidence supports the Commissioner's factual findings and whether the decision was
reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d
514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by
substantial evidence, shall be conclusive .... " 42 U.S.C. § 405(g). Substantial evidence is
"evidence which a reasoning mind would accept as sufficient to support a particular conclusion."
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large
or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is
"more than a mere scintilla ... and somewhat less than a preponderance." Laws, 368 F.2d at
642. "In reviewing for substantial evidence, (the court should not] undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the
(Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chafer,
76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. §
416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is
limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her
findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 439-40 (4th Cir. 1997).

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III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set
forth in 20 C.F.R. § 404.1520, under which the ALJ is to evaluate a claim:
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 [in severity] 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 ... past work or (5) any other work.
Albright v. Comm 'r of the SSA, 174 F.3d 473 , 475 n.2 (4th Cir. 1999). "If an applicant's claim
fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v.
Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted).

The burden of proof and

production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step,
the burden shifts to the ALJ to show that other work exists in the national economy which the
claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance
with the "special technique" described in 20 C.F.R. § 404.1520a(b)- (c). This regulatory scheme
identifies four broad functional areas in which the ALJ rates the degree of functional limitation
resulting from a claimant's mental impairment(s): activities of daily living; social functioning ;
concentration, persistence, or pace; and episodes of decompensation. Id.§ 404.1520a(c)(3). The
ALJ is required to incorporate into his written decision pertinent findings and conclusions based
on the "special technique." Id. § 404.1520a(e)(3).
IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant
"not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in
substantial gainful employment since the alleged onset date. (R. 16). Next, the ALJ determined
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Claimant had the severe impairments of obesity, degenerative disc disease of the lumbar spine,
type 2 diabetes mellitus, left rotator cuff tear, hypertension, acute myocardial infarction, syncope,
carpal tunnel syndrome, cubital tunnel syndrome, and kidney failure, as well as the non-severe
impairments of wrist pain, left knee sprain, and depression. (R. 16-18). At step three, the ALJ
concluded Claimant's impairments were not severe enough, either individually or in
combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (R. 18- 20). Applying the technique prescribed by the regulations, the
ALJ found that Claimant's mental impairments have resulted in mild limitations in
understanding, remembering, or applying information; interacting with others; concentrating,
persisting, or maintaining pace; and adapting or managing oneself. (R. 17-18).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding that he had the
ability to perform light work 1 with the following restrictions:
[L ]ift/carry 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk
6 hours in an 8-hour workday; push/pull as much as he can lift/carry; occasionally
reach overhead to the left and for all other reaching, he can reach occasionally to
the left; frequently handle, finger, and feel with the left upper extremity;
frequently climb ramps and stairs but occasionally climb ladders, ropes, or
scaffolds, balance, stoop, kneel, crouch, and crawl; occasionally work at
unprotected heights, around moving mechanical parts, and operate a motor
vehicle. Time off task can be accommodated by normal breaks.
(R. 20- 26). In making this assessment, the ALJ found that Claimant's statements about his
limitations were not entirely consistent with the medical evidence and other evidence in the
record. (R. 21 ). At step four, the ALJ concluded Claimant did not have the RFC to perform the

1

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to IO pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all these activities. If an individual can perform light work, he or she can also perform sedentary work,
unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of
time. 20 C.F.R. § 404. l 567(b ).

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requirements of his past relevant work as a delivery route truck driver and assembler. (R. 26).
At step five, upon considering Claimant's age, education, work experience and RFC, the ALJ
determined there are jobs that exist in significant numbers in the national economy that he can
perform. (R. 26- 27).
V. DISCUSSION

Claimant alleges that the ALJ erred by failing to resolve a conflict between a "very
persuasive" functional capacity evaluation ("FCE") and the RFC. Pl.'s Br. [DE-12] at 7-1 7; Pl. 's
Reply [DE-16].

The Commissioner contends substantial evidence supports the ALJ's RFC

finding. Def.'s Br. [DE-15] at 6- 9.
The RFC is the capacity an individual possesses despite the limitations caused by
physical or mental impairments. 20 C.F.R. § 404.1545(a)(l); see also SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1996). The RFC is based on all relevant medical and other evidence in the
record and may include a claimant's own description of limitations arising from alleged
symptoms. 20 C.F.R. § 404.1545(a)(3); see also SSR 96-8p, 1996 WL 374184, at *5. "[T]he
residual functional capacity 'assessment must first identify the individual's functional limitations
or restrictions and assess his or her work-related abilities on a function-by-function basis,
including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir.
2015) (quoting SSR 96-8p). The ALJ must provide "a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations)." Id. (quoting SSR 96-8p); see also
Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an
accurate and logical bridge from the evidence to his conclusion").
When assessing a claimant's RFC, the ALJ must consider the opinion evidence.
5

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C.F.R. § 404.1545(a)(3). The applicable regulations provide that the ALJ "will not defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s) , including those from [Claimant's] medical sources."

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C.F.R. § 404.1520c( a). Instead, the ALJ must consider the persuasiveness of medical opinions
using five factors: (1) supportability, meaning that "[t]he more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or her
medical opinion(s) ... the more persuasive the medical opinions or prior administrative medical
finding(s) will be"; (2) consistency, meaning that the more consistent an opinion is with other
evidence in the record, the more persuasive the medical opinion will be; (3) the medical source's
relationship with the claimant, which considers the length of the treating relationship, frequency
of examinations, purpose of the treating relationship, extent of the treatment relationship, and
whether the medical source examined the claimant; (4) specialization, meaning that "a medical
source who has received advanced education and training to become a specialist may be more
persuasive"; and (5) "other factors that tend to support or contradict a medical opinion." Id. §
404.l 520c(c)(1 )-(5). The most important factors are supportability and consistency.

Id. §

404.1520c(a).
On November 26, 2019, a functional capacity evaluation was conducted to determine
Claimant's ability to perform work tasks. (R. 772- 79). The evaluator concluded, in relevant
part, that Claimant's physical capacity was at a "light physical demand level," he could lift 20
pounds occasionally and 10 pounds frequently from floor to 48 inches, and he could "lift and
carry" 10 pounds on an occasional basis. (R. 772, 779). The ALJ characterized the FCE as
finding Claimant capable of "light work" and determined that it was "very persuasive" because
"the examiner was able to put the claimant through various tests and maneuvers." (R. 25).
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Claimant contends the FCE's conclusion that Claimant can carry 10 pounds occasionally
is below the light exertion level and thus, inconsistent with the RFC. Pl. 's Br. [DE-12] at 12.
Claimant reasons that since the ALJ found the FCE very persuasive, he should have explained
why he did not adopt the limitation to carrying 10 pounds occasionally. Id. at 12- 13 . The
Commissioner argues that the ALJ was not required to adopt all the FCE's findings simply
because he found it to be persuasive, and other evidence supports the ALJ's decision. Def. 's Br.
[DE-15] at 8- 9.
In Ezzell v. Berryhill, the Fourth Circuit found error where the ALJ gave significant
weight to a medical opinion that indicated the claimant required a cane and was severely
impaired in the ability to move about but then implicitly rejected that opinion, without
discussion, by concluding that the claimant failed to demonstrate the inability to effectively
ambulate on a sustained basis. 688 F. App'x 199, 201 (4th Cir. 2017); see also Adams v. Comm 'r
of Soc. Sec., No. 3:20-CV-00224-RJC, 2022 WL 634213, at *3 (W.D.N.C. Mar. 3, 2022)

("Courts in this district have further explained 'that an ALJ cannot implicitly reject portions of a
doctor's opinion [that the ALJ found persuasive] that are inconsistent with her RFC without'
adequately explaining her reasoning.") (citing Clark v. Berryhill, No. 5:17-CV-143-DCK, 2018
WL 3014408, at *5 (W.D.N.C. June 15, 2018)).
Here, the ALJ determined that Claimant could perform light work, including lifting and
carrying 20 pounds occasionally and 10 pounds frequently. (R. 20); see 20 C.F.R. § 404.1567(b)
(providing that light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds). This is in material conflict with the FCE's
conclusion that Claimant could lift and carry 10 pounds occasionally, (R. 772, 779), and the ALJ
failed to explain why he did not adopt this limitation despite finding the FCE to be very
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persuasive. See Saunders v. O 'Malley, No. 5:23-CV-48-RJ, 2024 WL 1116972, at *4 (E.D.N.C.
Mar. 14, 2024) (finding error where the ALJ failed to explain why he rejected a limitation from
an opinion he found to be well supported and consistent with the conclusions of treatment
providers).
There is also some ambiguity in the FCE itself as to Claimant's ability to carry, which the
ALJ does not address. The ALJ specifically cited to the following page within the FCE:

FONCTJONAIJ CAPACITY DATA COLLECTION

NAME:

Lloyd McClure

DATE:

1L/16119

DOCTOR:

Dr. Szura

MATl!:RiAL-BANOLJNG ACTIV11'J'ES
Occaslonal

·Fre11uent

Copst11nt

1-33% J)nv

34-66'¼

-6.7-,,100%

l8'' .to knuckle

20)JJbs.

10,0:lt:,s.

NIA

$.nuckle to shoulde.r

10'.0 lbs:

0.0 lbs.

N/A

Knuckle to overhead

0.0 lbs.

0,0 lbs.

NIA

Floorto wabl

20,0 lbs,

l0,0 lbs.

NIA

Floor to ~nuckle

20.0 lbs.

10.0I~.

N/A

R.i2ht hand floor to waist

4.8.0 lbs.

NIA

NIA

5.0 lbs.

NIA

NIA

20.Hlbs.

10.0 lbs.

NIA

100.0 l.bs.

N/A

NIA

LlfTtNG FROM:

Left hand floor to waist

Carr:ying;
Push/Pu I I Sled

COMMENTS: M.r, McCttlre dcnwnstrates a light ~hystcal d~1nand ~evel . . The occasiQne1 lifting
protocol was tem,inated due to reriorted left shoulder p-atn 9/f O and upper extremity weakness.

8

(R. 25, 774). This portion of the FCE appears to indicate that Claimant can carry 20 pounds
occasionally and 10 pounds frequently, which is consistent with the demands of light work found
in the RFC, (R. 20); see 20 C.F.R. § 404.1567(b), but inconsistent with the FCE's own
conclusion that Claimant could lift and carry only 10 pounds occasionally, (R. 772, 779). The
court cannot find that the Functional Capacity Data Collection constitutes substantial evidence
supporting the ALJ's RFC given the material inconsistency within the FCE on the frequency with
which Claimant can carry ten pounds.
Additionally, while the Commissioner is correct that the ALJ need not defer to any
medical opinion or prior administrative finding, 20 C.F.R. § 404.1520c(a), the ALJ must provide
a sufficient explanation so that the court can trace his reasoning, see Alonna A. v. Kijakazi, No.
CV 22-3115-CDA, 2023 WL 8373378, at *4 (D. Md. Dec. 1, 2023) (the ALJ's failure to explain
why the limitations opined by sources whose opinions were found to be persuasive were not
fully incorporated into the RFC "deprives the ALJ's decision of the requisite ' logical bridge'
between the evidence and the RFC that would allow this Court to trace the ALJ's reasoning)
(citing Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)). The ALJ found the FCE to be
"very persuasive," but the FCE is unclear on Claimant's ability to lift and carry, and the result
may be case dispositive, so the error is not harmless. The Commissioner points to other evidence
in support of the RFC, such as an FCE from August 7, 2021 , finding Claimant had mild
limitations in lifting and carrying and could lift and carry light objects, which the ALJ found
"mostly persuasive." (R. 893- 904). However, the FCE is unhelpful on the disputed issue of
how much Claimant can lift and carry because, as the ALJ pointed out, the the examiner did not
define what is meant by "mild limitations," (R. 26), and the FCE is silent on the frequency with
which Claimant can carry light objects, i.e., frequently or occasionally. The court finds remand
9

is necessary so that the ALJ can clarify his reasoning regarding the November 26, 2019 FCE and
Claimant's ability to lift and carry.

VI. CONCLUSION
For the reasons stated above, the case is REMANDED for further proceedings consistent
with this order.
So ordered, the 3rd day of June 2024.

United States rvfagistrate Judge