Evangeline Smith v. Michael Astrue , 457 F. App'x 326 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1574
EVANGELINE G. SMITH,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:09-cv-00488-MOC-DSC)
Submitted: November 30, 2011 Decided: December 14, 2011
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David J. Cortes, ROBERTI, WITTENBERG, LAUFFER AND WICKER,
Durham, North Carolina, for Appellant. Anne M. Tompkins, United
States Attorney, Jennifer A. Youngs, Assistant United States
Attorney, Lisa G. Smoller, Special Assistant United States
Attorney, Boston, Massachusetts, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Evangeline G. Smith appeals the district court’s order
affirming the Commissioner of Social Security’s denial of her
application for disability insurance benefits and supplemental
security income. We must uphold the decision to deny benefits
if the decision is supported by substantial evidence and the
correct law was applied. Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005) (per curiam) (citing 42 U.S.C. § 405(g) (2006)).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id.(internal quotation marks omitted). This court does not reweigh
evidence or make credibility determinations in evaluating
whether a decision is supported by substantial evidence;
“[w]here conflicting evidence allows reasonable minds to
differ,” we defer to the Commissioner’s decision. Id. We
affirm.
Smith argues that the administrative law judge (“ALJ”)
erred in failing to obtain the opinion of Dr. Davis, her
treating physician, or another medical expert as to whether she
equaled Listing 1.02, Major Dysfunction of a Joint. The ALJ
obtained the required medical opinion. “The signature of a
State agency medical or psychological consultant on [a
Disability Determination and Transmittal Form] . . . ensures
that consideration by a physician (or psychologist) designated
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by the Commissioner has been given to the question of medical
equivalence at the initial and reconsideration levels of
administrative review.” Social Security Ruling (“SSR”) 96-6p,
1996 WL 374180, at *3. Here, the record includes Disability
Determination and Transmittal Forms signed by Dr. Kumar and Dr.
Cruise.
Next, Smith contends that the ALJ erred in failing to
discuss his reasons for concluding that Smith did not equal any
listing. Specifically, Smith suggests that she may have
medically equaled Listing 1.02 but that the ALJ did not mention
this listing. Smith points to a July 2007 x-ray indicating she
had a bony protrusion from her ankle and an August 2007
statement from Dr. Davis that she had severe bilateral pes
planovalgus, causing a significant amount of pain and resulting
in an inability to engage in prolonged standing or walking.
The Commissioner correctly observes, however, that the
district court considered and rejected this argument during
Smith’s previous claim for disability benefits. The prior
proceedings ended in a final judgment having preclusive effect.
See Lively v. Sec’y of Health & Human Servs., 820 F.2d 1391,
1392 (4th Cir. 1987) (“Congress has clearly provided by statute
that res judicata prevents reappraisal of both the Secretary’s
findings and his decision in Social Security cases that have
become final, 42 U.S.C. § 405(h) [(2006)].”). Additionally,
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although the ALJ’s explanation was cursory, we are satisfied
that the ALJ considered the records Smith cites. Reading the
ALJ’s decision as a whole, substantial evidence supports the
finding at step three of the sequential evaluation process as
the ALJ’s analysis at subsequent steps of the evaluation are
inconsistent with meeting Listing 1.02. See Fischer-Ross v.
Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005) (rejecting per
se rule that failure to provide sufficient explanation at step
three requires remand and holding that ALJ’s finding at other
steps of sequential evaluation may provide basis for upholding
step three finding).
Smith also contends that the ALJ’s pain analysis was
deficient in several respects. She argues that the claimant
carries a heavy burden at step one of the pain analysis and that
step two is a de minimis test designed to weed out only spurious
claims. Smith further asserts that, once a claimant satisfies
step one by producing medical evidence demonstrating the
existence of an impairment which could reasonably be expected to
produce the pain alleged, the claimant is entitled to the
benefit of “great weight” rule, recognized by Craig v. Chater,
76 F.3d 585 (4th Cir. 1996), affording the claimant’s statements
regarding the severity and limiting effects of pain a
presumption of credibility. Smith argues that the ALJ committed
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reversible error in failing to make an explicit step one finding
and in failing to apply the great weight rule.
“[T]he determination of whether a person is disabled
by pain or other symptoms is a two-step process.” Id. at 594.
First, the claimant must produce “objective medical evidence
showing the existence of a medical impairment(s) which could
reasonably be expected to produce the pain alleged.” Id.(internal quotation marks omitted). Second, “the intensity and
persistence of the claimant’s pain, and the extent to which it
affects her ability to work, must be evaluated.” Id. at 595.
The second step is analyzed using statements from treating and
nontreating sources and from the claimant. 20 C.F.R.
§§ 404.1529(a), 416.929(a) (2011). The relevant factors in
evaluating the claimant’s statements include consistency in the
claimant’s statements, medical evidence, medical treatment
history, and the adjudicator’s observations of the claimant.
See SSR 96-7p, 1996 WL 374186, at *5-*8.
Here, the ALJ explicitly found that Smith satisfied
step one of the pain analysis. However, Craig does not create
or recognize a great weight rule affording the claimant a
presumption of credibility at step two of the pain analysis
based on a successful showing at step one. Craig notes that
step one of the pain analysis is focused solely “on establishing
a determinable underlying impairment — a statutory requirement
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for entitlement to benefits.” 76 F.3d at 594. Craig explains
that, after the claimant crosses this threshold, “the intensity
and persistence of the claimant’s pain, and the extent to which
it affects her ability to work, must be evaluated.” Id. at 595.
The claimant’s own statements regarding her pain are not
afforded any presumption; rather, “[u]nder the regulations, this
evaluation [of the claimant’s pain] must take into account not
only the claimant’s statements about her pain, but also all the
available evidence, including the claimant’s medical history,
medical signs, and laboratory findings.” Id. (internal
quotation marks omitted).
Smith identifies cases that she contends support the
existence of a great weight rule. Although these cases
recognize that subjective evidence may be entitled to great
weight, they do not rely on the finding at step one of the pain
analysis. Rather, great weight is afforded to subjective
evidence when it is either uncontradicted or supported by
substantial evidence. See, e.g., Combs v. Weinberger, 501 F.2d
1361, 1362-63 (4th Cir. 1974) (“[W]e have held that subjective
evidence is entitled to great weight, especially where such
evidence is uncontradicted in the record.”) (internal quotation
marks omitted). Thus, Smith is not entitled to relief on this
claim.
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Smith’s final argument is based on her observation
that Dr. Davis opined that she should lie down/elevate her legs
for two hours in an eight-hour day and that she could sit for
only four hours and stand and walk each for only one hour. She
argues that the ALJ erred in failing to give Dr. Davis’ opinion
controlling weight because the ALJ neither mentioned that
opinion nor cited contrary evidence. Smith asserts that if Dr.
Davis’ opinion is given controlling weight, the ALJ’s conclusion
that she can perform sedentary work is not supported by
substantial evidence.
As an initial matter, we note that the 2006 evaluation
on which Smith relies falls outside the period relevant in this
case and that Smith’s present argument was rejected by the
district court during her earlier attempt to secure disability
benefits. Here, the ALJ referenced Dr. Davis’ evaluations,
including the June 2006 evaluation, and concluded Dr. Davis’
opinion was consistent with a residual functional capacity for
sedentary work with restrictions. In July and September 2006,
Dr. Davis cleared Smith for “sitting down work.” In August
2007, Dr. Davis indicated that Smith was only precluded from
prolonged standing or walking. Accordingly, we conclude Dr.
Davis’ opinions are consistent with the ability to perform
sedentary work.
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Based on the foregoing, we conclude that substantial
evidence supports the agency decision, and we affirm the
judgment of the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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