April Fiske v. Michael Astrue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cv-00564-D Copies to all parties and the district court/agency. [998759366].. [11-1335]

Appeal: 11-1335

Document: 27

Date Filed: 01/06/2012

Page: 1 of 7

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1335

APRIL M. FISKE,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
District Judge. (5:09-cv-00564-D)

Submitted:

December 22, 2011

Decided:

January 6, 2012

Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

William
Lee
Davis,
III,
Lumberton,
North
Carolina,
for
Appellant. Thomas Walker, United States Attorney, Robert Crowe,
Special Assistant United States Attorney, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
April McCarty Fiske appeals the district court’s order
affirming the Commissioner of Social Security’s denial of her
application for disability insurance benefits.

We must uphold

the decision to deny benefits if the decision is supported by
substantial evidence and the correct law was applied.
§ 405(g)

(2006);

(4th Cir. 2005)

Johnson

(per

v.

434

Barnhart,

curiam).

“Substantial

42 U.S.C.

F.3d

650,

653

evidence

is

such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”

Johnson, 434 F.3d at 653 (internal

quotation marks omitted).
or

make

decision

credibility
is

conflicting

determinations

supported
evidence

This court does not reweigh evidence

by

in

evaluating

substantial

allows

reasonable

defer to the Commissioner’s decision.

Id.

whether

evidence;

minds

to

a

“[w]here

differ,”

we

We affirm.

Fiske asserts that her initial claim was reopened by
the

August

(“ALJ”).

2006

decision

of

the

administrative

law

judge

She argues that, if a claim is reconsidered on the

merits at any administrative level and has in fact been reopened
at any administrative level, the claim is subject to judicial
review.

Fiske

argues

that

the

Commissioner

actually

or

constructively reopened the prior decision and that the Appeals
Council therefore erred in applying res judicata.

2

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Date Filed: 01/06/2012

“The

Security

Social

findings
after

individuals
§ 405(h)

who

were

(2006).

“previous

and
a

decision

hearing

parties

to

Accordingly,

[disability]

Page: 3 of 7

of

shall
such

res

the
be

binding

hearing.”

judicata

determination

Commissioner

or

42

applies

decision

has

final by either administrative or judicial action.”
§ 404.957(c)(1) (2011).
prior

decision,

20

upon

of
all

U.S.C.
when

a

become

20 C.F.R.

The Commissioner may elect to reopen a

C.F.R.

decision is not reviewable.

§§ 404.987,

988

(2011),

but

this

See Culbertson v. Sec’y of Health &

Human Servs., 859 F.2d 319, 322 (4th Cir. 1988) (“When deciding
whether

to

reopen

or

to

reconsider

his

own

administrative

determinations, the Secretary enjoys broad discretion, which is
generally not subject to judicial review.”).
Here, the Appeals Council determined that res judicata
barred a finding of disability during the period at issue in
Fiske’s prior disability application. 1

The Council’s inquiry

into the ALJ’s decision and evidence concerning this period does
not constructively reopen the claim.

See Hall v. Chater, 52

F.3d 518, 521 (4th Cir. 1995) (holding that Appeals Council did
not

explicitly

or

implicitly

reopen

case

and

stating

that

Appeals Council must be afforded opportunity to look far enough
1

Because the Commissioner’s final decision was that Fiske
was never disabled, medical improvement was not in issue and we
need not reach Fiske’s argument on this point.

3

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into record to determine whether res judicata applies).

Because

the Commissioner’s decision not to reopen Fiske’s prior claim is
not

subject

to

judicial

review,

res

judicata

bars

reconsideration of that claim.
Next, Fiske argues that the Commissioner’s conclusion
that

she

is

evidence.

not

She

disabled

contends

is

that

not
the

supported
ALJ

did

by

not

substantial

give

adequate

consideration to the medical evidence provided by her treating
physician,

that

the

ALJ

failed

to

cite

or

refer

to

medical

evidence in support of his residual functional capacity finding,
and that the ALJ failed to consider the effects of her medical
treatment, the side effects from her medications, as well as her
complaints of pain and other symptoms.
Fiske bears the burden of proving that she is disabled
within

the

meaning

of

§ 423(d)(5)

(2006);

English

(4th Cir. 1993).
evaluate

a

416.920(a)(4)
Commissioner

the

Social
v.

Security

Shalala,

Act.

10

F.3d

42

U.S.C.

1080,

1082

The Commissioner uses a five-step process to

disability

claim.

(2011).
asks,

20

Pursuant
in

sequence,

C.F.R.
to

§§ 404.1520(a)(4),

this

whether

process,
the

the

claimant:

(1) worked during the alleged period of disability; (2) had a
severe impairment; (3) had an impairment that met or equaled the
severity of a listed impairment; (4) could return to her past
relevant work; and (5) if not, could perform any other work in
4

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the national economy.

Id.

Page: 5 of 7

The claimant bears the burden of

proof at steps one through four, but the burden shifts to the
Commissioner at step five.
146 n.5 (1987).

See Bowen v. Yuckert, 482 U.S. 137,

If a decision regarding disability can be made

at any step of the process, the inquiry ceases.

20 C.F.R.

§§ 404.1520(a)(4), 416.920(a)(4).
Although Fiske argues that the ALJ failed to afford
the opinion of her treating physician controlling weight, she
has

failed

to

conclusion. 2
appellant’s

identify
See

brief

Fed.

any
R.

contain

opinion

App.

P.

contrary
28(a)(9)

“contentions

and

to

the

ALJ’s

(requiring

reasons

for

that
them,

with citations to the authorities and parts of the record on
which the appellant relies”).

To the extent Fiske argues the

ALJ failed to give sufficient weight to Dr. Strahl’s opinion,
the argument is without merit.
Fiske

met

a

listed

Although Dr. Strahl opined that

impairment

between

2000

and

2003,

Commissioner was not required to accept his opinion.
C.F.R. § 404.1527(f)(2)(iii), (f)(3) (2011).

the

See 20

In any event, the

period from 2000 to 2003 is outside the time period relevant in
this case.

With reference to the relevant time period, Dr.

2

The only physician Fiske names apart from Dr. Strahl is
Dr.
John
Roberts,
who
saw
Fiske
briefly
during
her
hospitalization in 2000.
While under Dr. Roberts’ care, Fiske
improved “dramatically” and her affect was “brighter.”

5

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Strahl indicated Fiske could work.
gave

considerable

relevant

time

weight

inasmuch

to
as

Page: 6 of 7

The Commissioner’s decision

Dr.

Strahl’s

the

residual

opinion

within

functional

the

capacity

finding mirrors Dr. Strahl’s testimony.
Fiske

contends

that

the

ALJ’s

residual

functional

capacity assessment does not cite or refer to medical evidence
to support his finding.
treatment
through

Fiske is mistaken.

notes

tracking

February

2006.

Fiske’s

The ALJ reviewed

progress

Moreover,

the

from

ALJ

March

2003

considered

the

testimony of Dr. Stahl, who reviewed Fiske’s medical records,
listened to her testimony, and opined that Fiske was stable and
could work with some limitations.
Lastly, Fiske argues that the ALJ failed to consider
the side effects from her medications as well as her complaints
of pain and other symptoms.

Fiske did not mention any limiting

pain in her disability application or during the hearing, and
her

brief

fails

to

identify

the

evidence

the

ALJ

failed

to

consider with any specificity.
Based on the foregoing, we conclude that substantial
evidence

supports

the

agency

decision,

judgment of the district court.

and

we

affirm

the

We dispense with oral argument

because the facts and legal contentions are adequately presented

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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED

7