Denise Cuffee v. Carolyn Colvin

Filing

UNPUBLISHED AUTHORED OPINION filed.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

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UNPUBLISHED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Affirmed by unpublished opinion.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

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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Unpublished opinions are not binding precedent in this circuit.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.
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
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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.
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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
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).
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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

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470,

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472

omitted).

(4th

2012)

(internal

quotation

marks

“In reviewing for substantial evidence, we do not

undertake

to

reweigh

determinations,
[ALJ].”

Cir.

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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
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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

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
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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)

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

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between

the

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two

RFC

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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.
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See also

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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

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conservatively
performed

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with

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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.

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In

sum,

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the

ALJ’s

decision

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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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