Denise Cuffee v. Carolyn Colvin


UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:15-cv-00035-MSD-DEM. Copies to all parties and the district court. [1000029096]. [15-2530]

Download PDF
Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 1 of 13 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-2530 DENISE CUFFEE, Plaintiff - Appellant, v. NANCY A. BERRYHILL, Acting Commissioner of Social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 Affirmed by unpublished opinion.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 opinion, in which Chief Judge Gregory and Judge Motz joined. the 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 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 2 of 13 J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 3 of 13 BENNETT, District Judge: Denise Cuffee appeals from the district court’s judgment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. date, Cuffee sustained bilateral open tibial On that 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 3 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 4 of 13 of the shooting incident and corrective surgery, through July 9, 2010, the date of the ALJ’s Decision. 1 Vest’s Decision to request for review. SSA’s Appeals Cuffee appealed ALJ Council, which denied her 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 denied surgery. initially Cuffee’s on application January 5, 2012 for and benefits denied was 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 1 Sedentary 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. 4 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 5 of 13 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 Pianin’s request Decision for to review, the Appeals making ALJ Cuffee appealed ALJ Counsel, Pianin’s which Decision denied the her 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. the district court referred the matter to On April 15, 2015, 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 3 Light 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). 5 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 6 of 13 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 6 Appeal: 15-2530 F.3d Doc: 33 470, Filed: 02/23/2017 472 omitted). (4th 2012) (internal quotation marks “In reviewing for substantial evidence, we do not undertake to reweigh determinations, [ALJ].” Cir. Pg: 7 of 13 or conflicting substitute evidence, our judgment make for credibility that of the 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). determines The ALJ 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). functional Fourth, the ALJ considers the claimant’s residual 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 numbers perform alternative in national 404.1560(c). the work economy. that Id. exists §§ in significant 404.1520(a)(4)(v), The claimant bears the burden of proof for the 7 Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 8 of 13 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 prior RFC applications. evidentiary weight determinations the Commissioner during subsequent would accord disability 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), 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 based is subject to time, such as a fact a claimant’s medical which the prior finding was change with the passage of relating to the severity of condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the 8 the Appeal: 15-2530 Doc: 33 Filed: 02/23/2017 Pg: 9 of 13 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) added). (S.S.A. Jan. 12, 2000), 2000 WL 43774 (emphasis 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 reviewing in and order to evaluating comply all the with AR 00–1(4); evidence presented rather, at correct standard complies with the acquiescence ruling.” the 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 nerve damage by substantial evidence. Appellant asserts that because the 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 9 Appeal: 15-2530 Doc: 33 between the Filed: 02/23/2017 two RFC Pg: 10 of 13 determinations was too little warrant departure from the earlier determination. time to 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,” inconceivable she nonetheless that Ms. contends Cuffee’s that condition “it was is utterly 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 earlier RFC determination. two years after” ALJ Vest’s 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.” The Commissioner further notes that Id. at 23. 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. 10 See also Appeal: 15-2530 Doc: 33 Gross v. Filed: 02/23/2017 Heckler, 785 F.2d Pg: 11 of 13 1163, 1166 (4th Cir. 1986) (explaining that while medical conditions may exist, “none of [claimant’s] ailments benefits”). “In automatically other words, him condition a entitle to or disability 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 Furthermore, to even follow though the prior appellant’s RFC nerve determination. 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 evaluation his Pianin noted improvement in of several appellant’s functional factors functioning which between the limitations, reflect first ALJ plaintiff’s 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 11 leg pain, treated her pain Appeal: 15-2530 Doc: 33 conservatively performed Filed: 02/23/2017 with Pg: 12 of 13 over-the-counter activities of daily medication, living and (bathing, capably 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 longterm 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 argument does not medical (regarding evidence), respond the but directly weight notes to that be to appellant’s attributed Dr. Grady’s to third the new 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. indicates Viewed alongside the evidence (discussed above) which 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. 12 Appeal: 15-2530 Doc: 33 In sum, Filed: 02/23/2017 the ALJ’s decision Pg: 13 of 13 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. 13

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?