Evаngeline G. SMITH, Plaintiff—Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant—Appellee.
No. 11-1574
United States Court of Appeals, Fourth Circuit
Decided: Dec. 14, 2011
Submitted: Nov. 30, 2011.
326-330
We readily conclude the prosecutor‘s questioning, while improper, was not so egregious as to render Black‘s trial fundamentally unfair. First, the improper questioning was limited, and the district court sustained defense counsel‘s prompt objection to it. With the parties’ input, the district court crafted a curative instruction, ordering the jury to disregard the impermissible line of questioning and any attempted answers by Smith. This court “generally follow[s] the presumption that the jury obeyed the limiting instructions of the district court.” United States v. Williams, 461 F.3d 441, 451 (4th Cir.2006) (internal quotation marks omitted). Further, the Government did nоt otherwise mention or reference Black‘s post-arrest silence. Finally, the record is replete with evidence to support the jury‘s guilty verdicts. Accordingly, we hold the district court did not abuse its disсretion in denying Black‘s motion for a mistrial.
For the foregoing reasons, we affirm the district court‘s judgment.2 We dispense with oral argument because the facts and legal contentions are adequatеly presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Before DAVIS, WYNN, and DIAZ, Circuit Judges.
Unpublished opinions are not binding precedеnt in this circuit.
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 inсome. 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
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. The ALJ obtained thе required medical opinion. “The signature of a State agency medical or psychological consultant on [a Disability Determination and Transmittal Form] ... ensures that consideration by a physiсian (or psychologist) designated 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. Smith points to a July 2007 x-ray indicating she had a bony protrusion from her ankle and an August 2007 statement from Dr. Davis that she had severe bilateral pes plаnovalgus, 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 and rejected this argument during Smith‘s previous claim for disability benefits. The 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,
“[T]he determination of whether a person is disabled by pain or other symptoms is a two-steр process.” Id. at 594. First, the claimant must produce “objective medical evidence showing the existence of a medical impairment(s) which could reasonably be expected to prоduce the pain alleged.” Id. (internal quotation marks omitted). 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 and from the claimant.
Here, the ALJ explicitly found that Smith satisfied step one of the pain analysis. However, Craig does not create or recognize a great weight rule affording the claimant a presumption of credibility at step two of the pain analysis based on a successful showing at step one. Craig notes that step one of the pain analysis is focused solely “on establishing a determinable underlying impairment—a statutory requirement for entitlement to benefits.” 76 F.3d at 594. Craig еxplains 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.” Id. at 595. The claimant‘s own statements regarding her 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 evidence, including the claimant‘s medical history, medical signs, and laboratory findings.” Id. (internal quotation marks omitted).
Smith identifies cases that she contends support the existence оf a great weight rule. Although these cases recognize that subjective evidence may be entitled to great weight, they do not rely on the finding at step one of the pain analysis. Rather, great weight is afforded to subjective evidence when it is either uncontradicted or supported by substantial evidence. 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.
Smith‘s final argument is based on her observation that Dr. Davis opined thаt 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
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 consistеnt 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. Accordingly, we conclude Dr. Davis’ opinions are consistent with the ability to perform sedentary work.
Based on the foregoing, we conclude that substantial evidence supports the agency deсision, and we affirm the judgment of the district court. 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.