Michael Antonio GOMEZ, Petitioner v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 11-1405
United States Court of Appeals, Fourth Circuit
Decided: Dec. 21, 2011
226
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Petition dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Antonio Gomez, a native and citizen of Nicaragua, has petitioned for review of an order of the Board of Immigration Appeals dismissing Gomez‘s appeal of the Immigration Judge‘s order declining to continue his case and ordering him removed from the United States. The Attorney General has moved to dismiss the petition for review because Gomez has been convicted of a larceny offense that qualifies as an aggravated felony and two controlled substance offenses, which subject his appeal to the jurisdictional bar set forth in
We have considered Gomez‘s claims, including his contention that he should have been permitted to collaterally attack his convictions under Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in immigration court, and find them to be without merit. See Waugh v. Holder, 642 F.3d 1279, 1283-84 (10th Cir.2011); In re Madrigal-Calvo, 21 I. & N. Dec. 323, 327 (BIA 1996).
Accordingly, we grant the Attorney General‘s motion to dismiss for lack of jurisdiction. We deny Gomez‘s motion to expedite as moot and 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.
PETITION DISMISSED.
Paula FELTON-MILLER, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
No. 11-1500
United States Court of Appeals, Fourth Circuit.
Submitted: Dec. 1, 2011. Decided: Dec. 21, 2011.
228
Before GREGORY, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paula Felton-Miller 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.
Felton-Miller “bears the burden of proving that [s]he is disabled within the meaning of the Social Security Act.” English v. Shalala, 10 F.3d 1080, 1082 (4th Cir.1993) (citing
Felton-Miller contends that the ALJ did not properly analyze her subjective complaints of pain. Relying on our decision in Craig v. Chater, 76 F.3d 585 (4th Cir.1996), she argues that a claimant‘s statements regarding the severity and limiting effects of pain are entitled to a presumption of credibility once the claimant has produced
“[T]he determination of whether a person is disabled by pain or other symptoms is a two-step process.” Craig, 76 F.3d at 594. First, the claimant must produce “objective medical evidence showing the existence of a medical impairment[] which could reasonably be expected to produce the pain alleged.” Id.;
Craig lends no support to Felton-Miller‘s position.1 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.” Craig, 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.” Id. at 595. The claimant‘s own statements regarding her pain are not afforded any presumption; rather, “[u]nder the regulations, ... 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).
Felton-Miller contends the ALJ‘s reasons for discrediting her subjective complaints at step two of the pain analysis were inaccurate and insubstantial. First, the ALJ found that Felton-Miller‘s sarcoidosis has been well controlled with various medication regimens. Felton-Miller asserts that this statement is at odds with a treatment note that her symptoms were not well controlled with prednisone and subsequent notes that she stopped taking Plaquenil and methotrexate. However, we conclude that substantial evidence supports the ALJ‘s conclusion because the record shows that, although Felton-Miller‘s medication occasionally required adjustment, her symptoms were successfully controlled at various times.
Second, Felton-Miller contends that the ALJ‘s reliance on the absence of clinical signs of persistent joint inflammation, joint deformity, or limitation of joint motion is erroneous. She argues that sarcoidosis is a disease that, by definition, primarily involves a kind of inflammation, that she at times presented and was assessed with joint problems, and that she was treated with anti-inflammatory drugs. However, medical conditions alone do not
Third, Felton-Miller asserts that the ALJ erroneously relied on an irrelevant finding that her carpal tunnel syndrome was mild. We conclude that no such error occurred. In evaluating symptoms, including pain, an ALJ is to “consider all of the evidence presented.”
Fourth, the ALJ concluded that Felton-Miller‘s degenerative disc disease was mild. Felton-Miller asserts that this finding is not supported by substantial evidence because treatment notes indicate that she has a history of severe degenerative disc and joint disease. However, the ALJ reviewed the records Felton-Miller cites in addition to evidence that Felton-Miller enjoyed full strength, had no neurological deficits indicating nerve root compression, and had normal motor nerve function with no evidence of cervical myelopathy. Additionally, contrary to Felton-Miller‘s assertions, the ALJ‘s finding that Felton-Miller‘s degenerative disc disorder was a severe impairment at step two of the sequential evaluation does not contradict the ALJ‘s conclusion that the disorder‘s impact on her functioning was mild. Step two of the sequential evaluation is a threshold question with a de minimis severity requirement. See Bowen, 482 U.S. at 153-54; SSR 88-3c, 1988 WL 236022.
Fifth, Felton-Miller argues that the ALJ erroneously rejected her pain testimony on the ground that she has not required aggressive measures for pain relief such as ongoing use of steroid medication. Felton-Miller has waived review of this issue by failing to raise it below. See Pleasant Valley Hosp. v. Shalala, 32 F.3d 67, 70 (4th Cir.1994) (finding that appellant‘s failure to raise issue during administrative hearing and before district court operates as waiver of appellate review).
Turning to Felton-Miller‘s argument that the ALJ‘s RFC finding is not supported by substantial evidence because the ALJ is a layman and did not obtain an expert medical opinion, we conclude this argument is without merit.2 “[R]esidual functional capacity is the most [a claimant] can still do despite [her] limitations.”
Felton-Miller also argues that the ALJ did not make a valid mental RFC assessment because he did not apply the proper standards. In evaluating mental impairments, the ALJ employs a specific technique that considers four functional areas essential to the ability to work: activities of daily living; ability to maintain social functioning; concentration, persistence, and pace in performing activities; and deterioration or decompensation in work or work-like settings (Psychiatric Review Technique “PRT” findings).
The ALJ concluded that Felton-Miller‘s depressive disorder was a severe impairment at step two of the sequential process without discussion of the special technique. At step three, the ALJ listed the four functional areas and analyzed the impact of Felton-Miller‘s depressive disorder on these areas. The decision discusses the medical records relevant to Felton-Miller‘s treatment for depression in assessing her mental RFC. We conclude that the ALJ assessed Felton-Miller‘s mental RFC in accordance with regulations.
Based on the foregoing, we find that substantial evidence supports the agency decision, 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.
Michelle PARHAM, Plaintiff-Appellant, v. MID ATLANTIC BAKING COMPANY, Defendant-Appellee.
No. 11-2049.
United States Court of Appeals, Fourth Circuit.
Submitted: Dec. 16, 2011. Decided: Dec. 21, 2011.
231
Before SHEDD, DAVIS, and WYNN, Circuit Judges.