Petition for Writ of Certiorari — Sheila L. Gaines, Petitioner v. Nancy A. Berryhill, Acting Commissioner of Social Security

Appeal: 17-2381

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FILED: April 2, 2018

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2381

(8: 16-cv-025 39-TMD)

SHEILA L. GAINES

Plaintiff Appellant

-

V.

NANCY A. BERRYHILL

Defendant Appellee

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JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

Is! PATRICIA S. CONNOR, CLERK

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-2381

SHEILA L. GAINES,

Plaintiff Appellant,

-

V.

NANCY A. BERRYHILL,

Defendant Appellee.

-

Appeal from the United States District Court for the District of Maryland, at Greenbelt.

Thomas M. DiGirolamo, Magistrate Judge. (8: 16-cv-02539-TMD)

Submitted: March 29, 2018

Decided: April 2, 2018

Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sheila L. Gaines, Appellant Pro Se. Jay C. Hinsley, Special Assistant United States

Attorney, Office of General Counsel, SOCIAL SECURITY ADMINISTRATION,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Sheila L. Gaines appeals the magistrate judge's order upholding the

Administrative Law Judge's (AU) denial of Gaines' application for disability insurance

benefits.* "In social security proceedings, a court of appeals applies the same standard of

review as does the district court. That is, a reviewing court must uphold the

determination when an ALJ has applied correct legal standards and the AL's factual

findings are supported by substantial evidence." Brown v. Comm 'r Soc. Sec. Admin., 873

F.3d 251, 267 (4th Cir. 2017) (citation and internal quotation marks omitted).

"Substantial evidence is that which a reasonable mind might accept as adequate to

support a conclusion. It consists of more than a mere scintilla of evidence but may be

less than a preponderance." Pearson v. Co/yin, 810 F.3d 204, 207 (4th Cir. 2015)

(citation and 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 AU. Where conflicting evidence allows

reasonable minds to differ as to whether a claimant is disabled, the responsibility for that

decision falls on the AU." Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)

(brackets, citation, and internal quotation marks omitted).

We have reviewed the record and perceive no reversible error. The ALJ applied

the correct legal standards in evaluating Gaines' claim for benefits, and the AU 's factual

*

The parties consented to a final disposition by the magistrate judge, pursuant to

28 U.S.C. § 636(c) (2012).

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findings are supported by substantial evidence. Accordingly, we affirm the magistrate

judge's order upholding the denial of benefits.

See Gaines v. Berryhill, No.

8:16-cv-02539-TMD (D. Md. filed Sept. 30, 2017 & entered Oct. 2, 2017). We dispense

with oral argument because the facts and legal contentions are adequately presented in

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

AFFIRMED

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Case 8:16-cv-02539-TMD Document 16 Filed 09/30/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

)

)

Plaintiff,

)

)

V.

)

)

)

NANCY A. BERRYHILL,

)

Acting Commissioner of Social Security,

)

)

Defendant.

)

ORDER

SHEILA L. GAINES,

Civil No. TMD 16-2539

In accordance with the accompanying Memorandum Opinion, IT IS this 30th day of

September, 2017, by the United States District Court for the District of Maryland, ORDERED as

follows:

Plaintiff's motion for summary judgment BE, and the same hereby IS, DENIED;

Defendant's motion for summary judgment BE, and the same hereby IS, GRANTED;

Plaintiff's motion for remand BE, and the same hereby IS, DENIED; and

The Clerk shall transmit copies of the foregoing Memorandum Opinion and Order to counsel

of record and CLOSE the case.

____________Is'__________________

Thomas M. DiGirolamo

United States Magistrate Judge

Case 8:16-cv-02539.-TMD Document 15 Filed 09/30/17 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Southern Division

*

SHEILA L. GAINES,

*

*

Plaintiff,

*

V.

Civil No. TMD 162539

*

*

*

NANCY A. BERRYHILL,

Acting Commissioner of Social Security,

*

*

*

Defendant!

*

* ** * * * ** * ** *

MEMORANDUM OPINION

Plaintiff Sheila L. Gaines seeks judicial review under 42 U.S.C. § 405(g) of a final

decision of the Commissioner of Social Security ("Defendant" or the "Commissioner") denying

her application for disability insurance benefits under Title II of the Social Security Act. Before

the Court are Plaintiffs Motion for Summary Judgment (ECF No. 13) and Defendant's Motion

for Summary Judgment (ECF No. 14).2 Plaintiff contends that the administrative record does not

contain substantial evidence to support the Commissioner's decision that she is not disabled. No

hearing is necessary. L.R. 105.6. For the reasons that follow, Defendant's Motion for Summary

'On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.

She is, therefore, substituted as Defendant in this matter. See 42 U.S.C. § 405(g); Fed. R. Civ. P.

25(d).

2

The Fourth Circuit has noted that, "in social security cases, we often use summary judgment as

a procedural means to place the district court in position to fulfill its appellate function, not as a

device to avoid nontriable issues under usual Federal Rule of Civil Procedure 56 standards."

Walls v. Barnhart, 296 F.3d 287, 289 n.2 (4th Cir. 2002). For example, "the denial of summary

judgment accompanied by a remand to the Commissioner results in a judgment under sentence

four of 42 U.S.C. § 405(g), which is immediately appealable." Id.

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 2 of 7

Judgment (ECF No. 14) is GRANTED, Plaintiffs Motion for Summary Judgment (ECF No. 13)

is DENIED, and the Commissioner's final decision is AFFIRMED.

I

Background

On July 12, 2016, Plaintiff filed a complaint in this Court seeking review of the

Commissioner's decision. Upon the parties' consent, this case was transferred to a United States

Magistrate Judge for final disposition and entry of judgment. The case subsequently was

reassigned to the undersigned. The parties have briefed the issues, and the matter is now fully

submitted.

II

Disability Determinations and Burden of Proof

The Social Security Act defines a disability as the inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment that can

be expected to result in death or that has lasted or can be expected to last for a continuous period

of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R.

§§ 404.1505, 416.905. A claimant has a disability when the claimant is "not only unable to do

his previous work but cannot, considering his age, education, and work experience, engage in

any other kind of substantial gainful work which exists

. . .

in significant numbers either in the

region where such individual lives or in several regions of the country." 42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B).

To determine whether a claimant has a disability within the meaning of the Social

Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the

regulations. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25, 124

2

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 3 of 7

S. Ct. 376, 379-380 (2003). "If at any step a finding of disability or riondisability can be made,

the [Commissioner] will not review the claim further." Thomas, 540 U.S. at 24, 124 S. Ct. at

379; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant has the burden of production

and proof at steps one through four. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct.

2287, 2294 n.5 (1987); Radford v. Colvin, 734 F.3d 288, 291 (4th Cir. 2013).

First, the Commissioner will consider a claimant's work activity. If the claimant is

engaged in substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§§ 404. 1520(a)(4)(i), 416.920(a)(4)(i).

Second, if the claimant is not engaged in substantial gainful activity, the Commissioner

looks to see whether the claimant has a "severe" impairment, i.e., an impairment or combination

of impairments that significantly limits the claimant's physical or mental ability to do basic work

activities. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995); see 20 C.F.R. §§ 404.1520(c),

404.1521(a), 416.920(c), 416.921(a).3

Third, if the claimant has a severe impairment, then the Commissioner will consider the

medical severity of the impairment. If the impairment meets or equals one of the presumptively

disabling impairments listed in the regulations, then the claimant is considered disabled,

regardless of age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Radford, 734 F.3d at 293.

The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do

most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include

(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching,

carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding,

carrying out, and remembering simple instructions; (4) use of judgment; (5) responding

appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes

in a routine work setting. Id. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Yuckert, 482 U.S. at

141, 107 S. Ct. at 2291.

3

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 4 of 7

Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the

presumptively disabling impairments, then the Commissioner will assess the claimant's RFC to

determine the claimant's "ability to meet the physical, mental, sensory, and other requirements"

of the claimant's past relevant work.

20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4),

416.920(a)(4)(iv), 416.945(a)(4). Residual functional capacity ("RFC") is a measurement of the

most a claimant can do despite his or her limitations. Hines v. Barnhart, 453 F.3d 559, 562 (4th

Cir. 2006); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for

providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but

the Commissioner is responsible for developing the claimant's "complete medical history,

including arranging for a consultative examination(s) if necessary, and making every reasonable

effort to help [the claimant] get medical reports from [the claimant's] own medical sources." 20

C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. See id. If a claimant retains the

RFC to perform past relevant work, then the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv),

416. 920(a)(4)(iv).

Fifth, if the claimant's RFC as determined in step four will not allow the claimant to

perform past relevant work, then the burden shifts to the Commissioner to prove that there is

other work that the claimant can do, given the claimant's RFC as determined at step four, age,

education, and work experience. See Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 2012).

The Commissioner must prove not only that the claimant's RFC will allow the claimant to make

an adjustment to other work, but also that the other work exists in significant numbers in the

national economy.

See Walls, 296 F.3d at 290; 20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant

ri!

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 5 of 7

numbers in the national economy, then the Commissioner will find that the claimant is not

disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will

find that the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

III

Substantial Evidence Standard

The Court reviews an AL's decision to determine whether the ALJ applied the correct

legal standards and whether the factual findings are supported by substantial evidence. See

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). In other words, the issue before the Court "is

not whether [Plaintiff] is disabled, but whether the AL's finding that [Plaintiff] is not disabled is

supported by substantial evidence and was reached based upon a correct application of the

relevant law." Id. The Court's review is deferential, as "[t]he findings of the Commissioner of

Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42

U.S.C. § 405(g). Under this standard, substantial evidence is less than a preponderance but is

enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.

See Hancock, 667 F.3d at 472; see also Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 1427 (1971).

In evaluating the evidence in an appeal of a denial of benefits, the court does "not

conduct a de novo review of the evidence," Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir.

1986), or undertake to reweigh conflicting evidence, make credibility determinations, or

substitute its judgment for that of the Commissioner. Hancock, 667 F.3d at 472. Rather, "[t]he

duty to resolve conflicts in the evidence rests with the AU, not with a reviewing court." Smith v.

Chater, 99 F.3d 635, 638 (4th Cir. 1996). When conflicting evidence allows reasonable minds to

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 6 of 7

differ as to whether a claimant is disabled, the responsibility for that decision falls on the AU.

Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam).

Iv

Discussion

Plaintiff contends that the ALJ failed to evaluate properly her obesity according to Social

Security Ruling 02-1p, arguing that the ALJ failed to consider properly the impact of her obesity

on her other impairments and on her ability to perform basic work activities. The AU, however,

acknowledged Plaintiff's obesity and found it to be a severe impairment. R. at 17. In fact, the

ALJ stated that Plaintiffs "obesity has been considered in combination with other impairments

in determining [her RFC]." R. at 18. Plaintiff fails to point the Court to any evidence of record

to indicate her obesity would limit her ability to function at the RFC level assessed by the AU.

Because Plaintiff "has not set forth, and there is no evidence in the record, of any functional

limitations as a result of her obesity that the ALJ failed to consider," Plaintiffs argument

regarding the AL's consideration of her obesity is without merit. Burch v. Barnhart, 400 F.3d

676, 684 (9th Cir. 2005).

Plaintiffs contention that the ALJ erred in assessing her credibility also is unavailing.

See Kearse v. Massanari, 73 F. App'x 601, 603 (4th Cir. 2003) (per curiam). Finally, Plaintiffs

argument that substantial evidence does not support the AL's RFC assessment because the AU

failed to provide an explanation to support the limitations set forth in the assessment is without

merit.

In sum, substantial evidence supports the decision of the AU, who applied the correct

legal standards here. Thus, Defendant's Motion for Summary Judgment is GRANTED,

Case 8:16-cv-02539-TMD Document 15 Filed 09/30/17 Page 7 of 7

Plaintiff's Motion for Summary Judgment is DENIED, and the Commissioner's final decision is

AFFIRMED.

V

Conclusion

For the foregoing reasons, Defendant's Motion for Summary Judgment (ECF No. 14) is

GRANTED.

Plaintiff's Motion for Summary Judgment (ECF No. 13) is DENIED The

Commissioner's final decision is AFFIRMED. A separate order will issue.

Is!

Thomas M. DiGirolamo

United States Magistrate Judge

Date: September 30, 2017

7