Denise Cuffee v. Nancy Berryhill , 680 F. App'x 156 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2530
DENISE CUFFEE,
Plaintiff - Appellant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:15-cv-00035-MSD-DEM)
Argued: December 9, 2016 Decided: February 23, 2017
Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and Richard D.
BENNETT, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Bennett wrote the
opinion, in which Chief Judge Gregory and Judge Motz joined.
ARGUED: Paul Bradford Eaglin, OLINSKY LAW GROUP, Syracuse, New
York, for Appellant. Kent Pendleton Porter, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON
BRIEF: Shekeba Morrad, OLINSKY LAW GROUP, Syracuse, New York,
for Appellant. Nora Koch, Acting Regional Chief Counsel,
Stephen Giacchino, Supervisory Attorney, M. Jared Littman,
Assistant Regional Counsel, Office of the General Counsel,
SOCIAL SECURITY ADMINISTRATION, Philadelphia, Pennsylvania; Dana
J. Boente, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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BENNETT, District Judge:
Denise Cuffee appeals from the district court’s judgment
upholding a decision of the Social Security Administration
(“SSA”), which denied her application for disability insurance
and supplemental security income benefits. The instant appeal
is based on Ms. Cuffee’s second application for benefits. She
contends that substantial evidence does not support the decision
of the Administrative Law Judge (“ALJ”) not to adopt the
residual functioning capacity (“RFC”) determination made during
appellant’s prior application. For the reasons stated below, we
affirm.
I.
On January 14, 2009, Cuffee filed her first application for
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”) under Titles II and XVI of the Social Security
Act, alleging disability beginning September 1, 2008. On that
date, Cuffee sustained bilateral open tibial fractures from
gunshot wounds to her leg and underwent corrective surgery to
treat her injury. SSA denied her application for benefits.
After conducting a hearing, Administrative Law Judge William T.
Vest, Jr. concluded that appellant was not disabled and did
retain the residual functional capacity (“RFC”) to perform a
limited range of sedentary work from September 1, 2008, the date
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of the shooting incident and corrective surgery, through July 9,
2010, the date of the ALJ’s Decision. 1 Cuffee appealed ALJ
Vest’s Decision to SSA’s Appeals Council, which denied her
request for review. Cuffee did not seek judicial review of the
ALJ’s decision.
Nearly three years after her initial injury, in September
of 2011, Cuffee filed her second application for SSI and DIB
benefits, again alleging disability beginning on September 1,
2008. 2 She then voluntarily amended her alleged onset date to
September 26, 2012 -- more than two years after the prior ALJ
Decision and more than four years after her initial injury and
corrective surgery. Cuffee’s application for benefits was
denied initially on January 5, 2012 and denied upon
reconsideration on April 4, 2012.
After conducting a hearing on October 1, 2013, ALJ Irving
A. Pianin issued a Decision on October 16, 2013 concluding that
Cuffee was not disabled at any time on or after her alleged
onset date of September 26, 2012. Specifically, ALJ Pianin
1Sedentary work “involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required
occasionally and other sedentary criteria are met.”
20 C.F.R. § 404.1567(a).
2 It is this application that gives rise to the instant
appeal.
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concluded that appellant retained the RFC to perform a limited
range of light work -- a less restrictive RFC determination than
that made by ALJ Vest in his 2010 Decision. 3 Cuffee appealed ALJ
Pianin’s Decision to the Appeals Counsel, which denied her
request for review, making ALJ Pianin’s Decision the final
decision of the Commissioner.
Cuffee filed a civil action in the United States District
Court for the Eastern District of Virginia, seeking judicial
review of the Commissioner’s final decision. On April 15, 2015,
the district court referred the matter to Magistrate Judge
Douglas E. Miller to prepare a report and recommendation on the
parties’ cross-motions for summary judgment. On September 18,
2015, Magistrate Judge Miller issued a thirty-nine (39) page
Report and Recommendation (“R&R”), recommending that the
Commissioner’s final decision be affirmed.
On October 2, 2015, Cuffee filed an objection to the
Magistrate Judge’s R&R, asserting that ALJ Pianin erred when he
3Light work “involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 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 of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.”
20 C.F.R. § 404.1567(b).
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declined to adopt the RFC finding from ALJ Vest’s 2010 Decision
— the same issue now before this Court on appeal. After
considering the record, the R&R, Cuffee’s objection, and the
Commissioner’s response, U.S. District Judge Mark S. Davis
overruled appellant’s objection, adopted the R&R, and affirmed
the Commissioner’s final Decision denying appellant’s claims for
disability benefits.
On December 8, 2015, Cuffee timely noted her appeal of the
district court’s final order and judgment. The thrust of
Cuffee’s appeal is that ALJ Pianin erred by declining to adopt
the RFC determination made during her prior SSA application.
II.
When reviewing a Social Security disability determination,
a reviewing court must “uphold the determination when an ALJ has
applied correct legal standards and the ALJ’s factual findings
are supported by substantial evidence.” Pearson v. Colvin, 810
F.3d 204, 207 (4th Cir. 2015) (quoting Bird v. Comm’r of Soc.
Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012)). Substantial
evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d
650, 653 (4th Cir. 2005) (per curiam) (internal quotation marks
omitted). It “consists of more than a mere scintilla of evidence
but may be less than a preponderance.” Hancock v. Astrue, 667
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F.3d 470, 472 (4th Cir. 2012) (internal quotation marks
omitted). “In reviewing for substantial evidence, we do not
undertake to reweigh conflicting evidence, make credibility
determinations, or substitute our judgment for that of the
[ALJ].” Johnson, 434 F.3d at 653 (quoting Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996)). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the
[ALJ].” Id.
In considering an application for disability benefits, an
ALJ uses a five-step sequential process to evaluate the
disability claim. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(2016). The ALJ determines whether a claimant: first, is
currently gainfully employed; second, has a severe impairment;
and third, has an impairment that meets or equals the
requirements of a listed impairment. Id. § 404.1520(a)(4)(i),
(ii), (iii). Fourth, the ALJ considers the claimant’s residual
functional capacity to determine whether he can perform the
functions of his past relevant work. Id. § 404.1520(a)(4)(iv).
Fifth, the ALJ considers the claimant’s age, education, work
experience, and residual functional capacity to decide whether
he can perform alternative work that exists in significant
numbers in the national economy. Id. §§ 404.1520(a)(4)(v),
404.1560(c). The claimant bears the burden of proof for the
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first four steps, but at the final, fifth step the Commissioner
bears the burden to prove that the claimant is able to perform
alternative work. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5,
107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987).
III.
Following this Court’s decisions in Lively and Albright, in
which we addressed the scope of res judicata in Social Security
disability cases, the SSA issued Acquiescence Ruling 00-1(4) to
explain the evidentiary weight the Commissioner would accord
prior RFC determinations during subsequent disability
applications. Lively v. Secretary of Health and Human Services,
820 F.2d 1391 (4th Cir. 1987); Albright v. Comm’r of Soc. Sec.
Admin., 174 F.3d 473 (4th Cir. 1999). In AR 00-1(4), the
Commissioner explained that:
When adjudicating a subsequent disability claim
arising under the same or a different title of the Act
as the prior claim, an adjudicator determining whether
a claimant is disabled during a previously
unadjudicated period must consider such a prior
finding as evidence and give it appropriate weight in
light of all relevant facts and circumstances. In
determining the weight to be given such a prior
finding, an adjudicator will consider such factors as:
(1) whether the fact on which the prior finding was
based is subject to change with the passage of
time, such as a fact relating to the severity of
a claimant’s medical condition;
(2) the likelihood of such a change, considering
the length of time that has elapsed between the
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period previously adjudicated and the period
being adjudicated in the subsequent claim; and
(3) the extent that evidence not considered in the
final decision on the prior claim provides a
basis for making a different finding with
respect to the period being adjudicated in the
subsequent claim.
AR 00-1(4) (S.S.A. Jan. 12, 2000), 2000 WL 43774 (emphasis
added). Applying AR 00-1(4), one court in this Circuit has
noted that, “[a]n ALJ does not necessarily have to walk through
each factor in order to comply with AR 00–1(4); rather,
reviewing and evaluating all the evidence presented at the
correct standard complies with the acquiescence ruling.” Grant
v. Colvin, 2014 WL 852080, at *7 (E.D. Va. Mar. 4, 2014).
While the parties do not dispute that AR 00-1(4) governs
the ALJ’s analysis, appellant argues that the ALJ’s decision not
to adopt the prior RFC determination was not supported by
substantial evidence.
Appellant asserts that because the nerve damage she
sustained was permanent, her condition is not “subject to change
with the passage of time.” Appellant’s Brief at 20. In support
of this claim, Cuffee cites the notes of Dr. Williamson, the
surgeon who operated on her in 2008 and who described the nerve
damage as permanent and who opined that appellant should avoid
“long term walking, ladders, stairs, and balancing activities.”
Id. at 22. Appellant further asserts that the three year span
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between the two RFC determinations was too little time to
warrant departure from the earlier determination. Id. at 24.
While appellant recognizes that “the length of time between the
decision dates is lengthier than a mere 2 weeks, as in the
Lively case,” she nonetheless contends that “it is utterly
inconceivable that Ms. Cuffee’s condition was capable of
improvement over 3 years so as to enable her to perform light
work.” Id.
The Commissioner argues that under AR 00-1(4), “[a]n
extended length of time elapsed between the period previously
adjudicated and the period being adjudicated in the instant
claim, which afforded the ALJ greater discretion to deviate from
the prior ALJ finding.” Appellee’s Brief at 22. Appellee notes
that ALJ Pianin’s decision was rendered “more than four years
after the injury and more than two years after” ALJ Vest’s
earlier RFC determination. Id. at 22-23(emphasis in original.)
On this basis, appellee asserts that the “gap of several years
between the relevant periods offers very little or no confidence
that Cuffee’s condition remained unchanged.” Id. at 23.
The Commissioner further notes that while Ms. Cuffee’s
nerve damage may be permanent, “disability is not determined
merely by the presence of impairments, but rather on the
resulting functional limitations experienced by the claimant.”
Appellee’s Brief at 27-28. See 20 C.F.R. § 404.1521. See also
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Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986)
(explaining that while medical conditions may exist, “none of
[claimant’s] ailments automatically entitle him to disability
benefits”). “In other words, a condition or diagnosis may
remain “permanent,” while the symptoms and extent of limitations
from that condition may improve.” Appellee’s Brief at 28.
We agree with appellee that the “extended length of time
elapsed” since the prior RFC determination supports ALJ Pianin’s
decision not to follow the prior RFC determination.
Furthermore, even though appellant’s nerve damage may be
permanent and not subject to the passage of time, the RFC is
based on appellant’s functional limitations — not her injuries
alone. Gross v. Heckler, 785 F.2d 1163, 1166 (4th Cir. 1986).
In his evaluation of appellant’s functional limitations, ALJ
Pianin noted several factors which reflect plaintiff’s
improvement in functioning between the first and second RFC
determinations: treatment notes from September 30, 2008 indicate
that Ms. Cuffee could “progress to weight bearing as tolerated”;
by February 2009, Cuffee was ambulating with a walker; by April
2009, Cuffee used only a cane; and by the time of her October
2013 hearing before ALJ Pianin, “Cuffee could not even remember
when she stopped using a cane.” Id. at 25 (citing J.A. 15.)
Coupled with record evidence showing that Ms. Cuffee declined to
seek medical treatment for her leg pain, treated her pain
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conservatively with over-the-counter medication, and capably
performed activities of daily living (bathing, cooking,
cleaning, shopping, etc.), the ALJ’s decision to depart from the
prior RFC was supported by substantial evidence.
Appellant also argues that the ALJ accorded improper weight
to medical evidence produced after ALJ Vest’s RFC determination.
Appellant’s Brief at 27-30. Cuffee asserts that because these
notes and opinions were not rendered in the context of a long-
term treatment relationship (such as that which appellant had
with Dr. Williamson and on which ALJ Vest relied in reaching the
earlier RFC determination), they should be accorded less weight.
Appellee does not respond directly to appellant’s third
argument (regarding the weight to be attributed to the new
medical evidence), but notes that Dr. Grady’s consultative
examination, coupled with the other record evidence, constitutes
substantial evidence in support of the ALJ’s RFC determination.
Contrary to appellant’s assertion, the results of Dr.
Grady’s consultative exam constitute more than a “scintilla” of
evidence. Viewed alongside the evidence (discussed above) which
indicates improvement in Ms. Cuffee’s functioning, the ALJ’s
decision to attribute less weight to Dr. Williamson’s nearly
four year old opinion (and to ALJ Vest’s RFC determination based
on that medical opinion) was appropriate.
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In sum, the ALJ’s decision not to adopt the prior RFC
determination was supported by substantial evidence.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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