McCray v. Kijakazi

Case: 21-60401 Document: 00516188137 Page: 1 Date Filed: 02/01/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 1, 2022
No. 21-60401
Lyle W. Cayce
Clerk
Emma McCray,
Plaintiff—Appellant,
versus
Kilolo Kijakazi, Acting Commissioner of Social
Security,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:20-CV-00003
Before King, Graves, and Ho, Circuit Judges.
Per Curiam:*
Emma McCray appeals the district court’s affirmance of the
Commissioner’s denial of Social Security Disability Insurance (SSDI)
benefits from the Social Security Administration (SSA). Because the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-60401
Commissioner’s decision is supported by substantial evidence, we Affirm
the judgment of the district court.
Facts and Procedural History
McCray applied for a Period of Disability, Supplemental Security
Income (SSI) and Disability Insurance Benefits (DIB) on August 5, 2014.
McCray alleged disability beginning on December 1, 2013 due to arthritis,
high blood pressure, high cholesterol, and anemia. Her onset date was later
amended to December 20, 2014. McCray’s application was initially denied.
At the time, McCray was 48 years old, had a limited education, completed
certified nursing assistant (CNA) training, and had past relevant work
experience as a CNA and a home health aide, both semi-skilled jobs. On
reconsideration, a hearing was held on January 17, 2017. McCray, her
attorney, and a vocational expert (VE) appeared. On July 19, 2017, the
Administrative Law Judge (ALJ) issued an unfavorable decision finding
McCray not disabled.
McCray subsequently sought Appeals Council review of the ALJ’s
decision. The Appeals Council remanded the case to the ALJ to further
evaluate her mental impairments and further consider her maximum residual
functional capacity (RFC). The ALJ held a supplemental hearing on
September 14, 2018 and heard the testimony of a VE and a medical expert.
On April 26, 2019, the ALJ again found McCray not disabled. The Appeals
Council denied review, and the ALJ’s decision stands as the Commissioner’s
final administrative decision, subject to judicial review. The adjudicated
period here begins with the alleged onset date, December 20, 2014, and ends
on the date of the ALJ’s decision, August 26, 2019.
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On January 6, 2020, McCray requested judicial review in the district
court.1 Following a hearing, the district court issued a judgment on March
11, 2021, affirming the Commissioner’s final decision. McCray subsequently
appealed.
Standard of Review
Our review of the ALJ’s determination is highly deferential. Perez v.
Barnhart, 415 F.3d 457, 464 (5th Cir. 2005). We review only whether the
decision is supported by substantial evidence and whether the correct legal
standards were applied. Id. at 461; see also 42 U.S.C. § 405(g). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. It is more than a mere scintilla and less
than a preponderance.” Perez, 415 F.3d at 461 (internal marks and citations
omitted). We scrutinize the record as a whole to determine whether such
substantial evidence is present, but we may not reweigh the evidence,
substitute our own judgment or resolve conflicts of evidence. Id.; see also
Singletary v. Bowen, 798 F.2d 818, 822-23 (5th Cir. 1986).
Discussion
To qualify for disability benefits, a claimant must suffer from a
disability. See 42 U.S.C. § 423(d)(1)(A). “The Social Security Act defines a
disability as a medically determinable physical or mental impairment lasting
at least twelve months that prevents the claimant from engaging in
substantial gainful activity.” Copeland v. Calvin, 771 F.3d 920, 923 (5th Cir.
2014) (internal marks and citation omitted); see also 42 U.S.C. §
423(d)(1)(A). The Commissioner applies a five-step sequential process to
determine if a complainant is disabled, as follows:
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The parties consented to an entry of judgment by the magistrate judge.
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First, a claimant must not be presently working. Second, a
claimant must establish that he has an impairment or
combination of impairments which significantly limits his
physical or mental ability to do basic work activities. Third, to
secure a finding of disability without consideration of age,
education, and work experience, a claimant must establish that
his impairment meets or equals an impairment enumerated in
the listing of impairments in the appendix to the regulations.
Fourth, a claimant must establish that his impairment prevents
him from doing past relevant work. Finally, the burden shifts
to the Secretary to establish that the claimant can perform
relevant work. If the Secretary meets this burden, the claimant
must then prove that he cannot in fact perform the work
suggested.
Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (internal marks, citations,
and alteration omitted); see also Waters v. Barnhart, 276 F.3d 716, 718 (5th
Cir. 2002); and 20 C.F.R. §§ 404.1520(a)-(f), 416.920. The claimant bears
the burden of proving her disability. Leggett v. Chater, 67 F.3d 558, 563-64
(5th Cir. 1995). The claimant also must prove any alleged error was
prejudicial and her substantial rights were affected. Jones v. Astrue, 691 F.3d
730, 734 (5th Cir. 2012).
The ALJ proceeded through all five steps and determined that
McCray was not disabled within the meaning of the SSA during the relevant
time period. McCray argues that the ALJ erred. We disagree.
I. Whether the ALJ erred in its assessment of the state agency physician.
McCray asserts that the ALJ failed to consider the opinion of Karol
Kossman, M.D., that limited her to a sedentary capacity. She says the failure
to consider this opinion caused her great prejudice because she would fit
within the parameters of the Medical-Vocational Guidelines if she was
limited to sedentary work. McCray cites Kneeland v. Berryhill, 850 F.3d 749,
760 (5th Cir. 2017), in support of her argument that the ALJ legally erred by
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failing to consider Kossman’s opinion. McCray points to statements in the
ALJ decision regarding two state agency medical consultants, Glenn James,
M.D., and Sylvester McDonnieal, M.D., as evidence that the ALJ failed to
consider the opinion of Kossman.
In Kneeland, this court concluded that the ALJ erred by rejecting a
medical opinion of an examining physician which conflicted with the ALJ’s
RFC assessment without explanation. Kneeland, 850 F.3d at 759-60. This
court also reiterated that a report from a non-examining state agency
reviewing physician, such as Kossman, does not alone constitute substantial
evidence. Id. at 761.
McCray also cites Alejandro v. Barnhart, 291 F.Supp.2d 497 (S.D.
Tex. 2003), for the proposition that the ALJ is not bound by the findings of
the state agency medical or psychological consultants but such findings must
be considered and the ALJ must explain the weight given. Id. at 515.
However, the Alejandro court was discussing situations where the treating
physician’s opinion is not accorded controlling weight. Id.The record here fails to establish that the ALJ refused to consider
Kossman’s position. The ALJ explicitly considered and gave little weight to
the opinion of Glenn James, M.D., who offered the same opinion as Kossman
that McCray should be limited to a sedentary capacity, because it was not
supported by the record. The ALJ also had access to additional medical
evidence, exhibits and testimony that arose subsequent to Kossman’s
opinion. Thus, McCray is unable to establish prejudice, as she must, and any
alleged error would be harmless. Garcia v. Berryhill, 880 F.3d 700, 704-05
(5th Cir. 2018).
II. Whether the ALJ erred by declining to order Consultative
Examinations thereby failing to adequately develop the record.
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The ALJ has a duty to develop the facts fully and fairly in a claim for
benefits. Boyd v. Apfel, 239 F.3d 698, 708 (5th Cir. 2001). However, an ALJ
may order a consultative examination at its discretion if he determines it is
necessary to make a determination on a claim. 20 C.F.R. §§ 404.1519a(b),
416.919a(b); see also Hardman v. Colvin, 820 F.3d 142, 148 (5th Cir. 2016). If
the ALJ has sufficient facts before him to make a determination, he has no
obligation to order additional consultative examinations. Id.McCray asserts that the ALJ failed to order the requested consultative
examinations to develop the record. McCray says that new examinations
were necessary because some of the existing exams had been done four to six
years earlier.2 McCray alludes to a case without providing a proper citation
where the claimant raised a requisite suspicion that such an examination was
necessary. But, here, McCray raises no requisite suspicion.
The Commissioner asserts that the ALJ fully developed the record,
obtaining three consultative examinations, treatment records pertaining to
the entire relevant period, and several medical opinions. The medical expert
also found the medical record sufficient to issue an opinion.
McCray is unable to show that the record here was insufficient for the
ALJ to make a determination on her claim or that the court erred in failing to
order additional consultative examinations.
III. Whether the ALJ erred by failing to incorporate all of McCray’s
restrictions into the residual functional capacity.
McCray asserts that there is no support for the RFC that the ALJ
assessed to her and that an overwhelming preponderance of the evidence
supports a more restrictive RFC. Specifically, McCray asserts that the ALJ
2
Interestingly, Kossman’s opinion, upon which McCray argues in issue one, is
dated more than four years prior to the ALJ decision.
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should have limited her to a range of sedentary work rather than light work.
McCray sought to submit additional consultative examinations because prior
examinations had been done some years earlier.3 She appears to be arguing
that her conditions worsened after her Medicaid coverage was terminated
and she could no longer afford her medication. However, she acknowledges
that she was able to provide testimony to that effect.
The Commissioner asserts that McCray’s subjective complaints and
mild findings do not support a more restrictive RFC. The Commissioner also
references specific record evidence supporting the finding that she was able
to perform light work activity. We agree that substantial evidence within the
relevant period supports the ALJ’s findings.
Accordingly, the judgment is Affirmed.
3
Again, see issue one.
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