Evangeline Smith v. Michael Astrue

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:09-cv-00488-MOC-DSC. Copies to all parties and the district court/agency. [998743610].. [11-1574]

Appeal: 11-1574

Document: 27

Date Filed: 12/14/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.”
(internal quotation marks omitted).
evidence
whether

or
a

“[w]here
differ,”

make

credibility

decision

is

conflicting
we

defer

to

evidence
the

This court does not reweigh

determinations

supported

Id.

by

allows

in

evaluating

substantial

evidence;

reasonable

minds

to

Id.

We

Commissioner’s

decision.

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.
obtained
State

the

agency

required
medical

medical
or

opinion.

psychological

“The

The ALJ

signature

consultant

of

on

a
[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.
had

a

bony

statement

Smith points to a July 2007 x-ray indicating she
protrusion

from

Dr.

from

Davis

her

that

ankle

she

had

and

an

severe

August

2007

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

Smith’s

previous

claim

and

for

rejected

disability

this

argument

benefits.

The

during
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)
3

[(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.
step

Smith further asserts that, once a claimant satisfies

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

presumption of credibility.

and

limiting

effects

of

pain

a

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
Id. at 594.

by pain or other symptoms is a two-step process.”
First,

the

claimant

must

produce

“objective

medical

evidence

showing the existence of a medical impairment(s) which could
reasonably

be

expected

to

produce

(internal quotation marks omitted).

the

pain

alleged.”

Id.

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

§§ 404.1529(a),

and

416.929(a)

from

the

(2011).

claimant.
The

20

relevant

C.F.R.

factors

in

evaluating the claimant’s statements include consistency in the
claimant’s
history,

statements,

and

the

medical

adjudicator’s

evidence,

medical

observations

of

treatment

the

claimant.

See SSR 96-7p, 1996 WL 374186, at *5-*8.
Here, the ALJ explicitly found that Smith satisfied
However, Craig does not create

step one of the pain analysis.
or

recognize

presumption

of

a

great

weight

credibility

at

rule

affording

step

two

of

based on a successful showing at step one.

the

the

claimant

pain

a

analysis

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.”

Page: 6 of 8

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.”
The

claimant’s

own

statements

regarding

her

Id. at 595.

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
medical

evidence,
signs,

including

and

the

laboratory

claimant’s

medical

history,

Id.

(internal

findings.”

quotation marks omitted).
Smith identifies cases that she contends support the
existence

of

a

recognize

that

great

weight

subjective

rule.

evidence

may

Although
be

these

entitled

to

cases
great

weight, they do not rely on the finding at step one of the pain
analysis.
evidence

Rather,
when

it

great
is

substantial evidence.

weight

either

is

afforded

uncontradicted

or

to

subjective

supported

by

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.

6

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Smith’s

Date Filed: 12/14/2011

final

argument

is

Page: 7 of 8

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

opinion nor cited contrary evidence.

neither

mentioned

that

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.
Davis’

opinions

are

Accordingly, we conclude Dr.

consistent

sedentary work.

7

with

the

ability

to

perform

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

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