UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1335
APRIL M. FISKE,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-cv-00564-D)
Submitted: December 22, 2011 Decided: January 6, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William Lee Davis, III, Lumberton, North Carolina, for
Appellant. Thomas Walker, United States Attorney, Robert Crowe,
Special Assistant United States Attorney, SOCIAL SECURITY
ADMINISTRATION, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
April McCarty Fiske appeals the district court’s order
affirming the Commissioner of Social Security’s denial of her
application for disability insurance benefits. We must uphold
the decision to deny benefits if the decision is supported by
substantial evidence and the correct law was applied. 42 U.S.C.
§ 405(g) (2006); Johnson v. Barnhart, 434 F.3d 650, 653
(4th Cir. 2005) (per curiam). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Johnson, 434 F.3d at 653 (internal
quotation marks omitted). This court does not reweigh evidence
or make credibility determinations in evaluating whether a
decision is supported by substantial evidence; “[w]here
conflicting evidence allows reasonable minds to differ,” we
defer to the Commissioner’s decision. Id. We affirm.
Fiske asserts that her initial claim was reopened by
the August 2006 decision of the administrative law judge
(“ALJ”). She argues that, if a claim is reconsidered on the
merits at any administrative level and has in fact been reopened
at any administrative level, the claim is subject to judicial
review. Fiske argues that the Commissioner actually or
constructively reopened the prior decision and that the Appeals
Council therefore erred in applying res judicata.
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“The findings and decision of the Commissioner of
Social Security after a hearing shall be binding upon all
individuals who were parties to such hearing.” 42 U.S.C.
§ 405(h) (2006). Accordingly, res judicata applies when a
“previous [disability] determination or decision has become
final by either administrative or judicial action.” 20 C.F.R.
§ 404.957(c)(1) (2011). The Commissioner may elect to reopen a
prior decision, 20 C.F.R. §§ 404.987, 988 (2011), but this
decision is not reviewable. See Culbertson v. Sec’y of Health &
Human Servs., 859 F.2d 319, 322 (4th Cir. 1988) (“When deciding
whether to reopen or to reconsider his own administrative
determinations, the Secretary enjoys broad discretion, which is
generally not subject to judicial review.”).
Here, the Appeals Council determined that res judicata
barred a finding of disability during the period at issue in
Fiske’s prior disability application. 1 The Council’s inquiry
into the ALJ’s decision and evidence concerning this period does
not constructively reopen the claim. See Hall v. Chater, 52
F.3d 518, 521 (4th Cir. 1995) (holding that Appeals Council did
not explicitly or implicitly reopen case and stating that
Appeals Council must be afforded opportunity to look far enough
1
Because the Commissioner’s final decision was that Fiske
was never disabled, medical improvement was not in issue and we
need not reach Fiske’s argument on this point.
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into record to determine whether res judicata applies). Because
the Commissioner’s decision not to reopen Fiske’s prior claim is
not subject to judicial review, res judicata bars
reconsideration of that claim.
Next, Fiske argues that the Commissioner’s conclusion
that she is not disabled is not supported by substantial
evidence. She contends that the ALJ did not give adequate
consideration to the medical evidence provided by her treating
physician, that the ALJ failed to cite or refer to medical
evidence in support of his residual functional capacity finding,
and that the ALJ failed to consider the effects of her medical
treatment, the side effects from her medications, as well as her
complaints of pain and other symptoms.
Fiske bears the burden of proving that she is disabled
within the meaning of the Social Security Act. 42 U.S.C.
§ 423(d)(5) (2006); English v. Shalala, 10 F.3d 1080, 1082
(4th Cir. 1993). The Commissioner uses a five-step process to
evaluate a disability claim. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2011). Pursuant to this process, the
Commissioner asks, in sequence, whether the claimant:
(1) worked during the alleged period of disability; (2) had a
severe impairment; (3) had an impairment that met or equaled the
severity of a listed impairment; (4) could return to her past
relevant work; and (5) if not, could perform any other work in
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the national economy. Id. The claimant bears the burden of
proof at steps one through four, but the burden shifts to the
Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137,
146 n.5 (1987). If a decision regarding disability can be made
at any step of the process, the inquiry ceases. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
Although Fiske argues that the ALJ failed to afford
the opinion of her treating physician controlling weight, she
has failed to identify any opinion contrary to the ALJ’s
conclusion. 2 See Fed. R. App. P. 28(a)(9) (requiring that
appellant’s brief contain “contentions and reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies”). To the extent Fiske argues the
ALJ failed to give sufficient weight to Dr. Strahl’s opinion,
the argument is without merit. Although Dr. Strahl opined that
Fiske met a listed impairment between 2000 and 2003, the
Commissioner was not required to accept his opinion. See 20
C.F.R. § 404.1527(f)(2)(iii), (f)(3) (2011). In any event, the
period from 2000 to 2003 is outside the time period relevant in
this case. With reference to the relevant time period, Dr.
2
The only physician Fiske names apart from Dr. Strahl is
Dr. John Roberts, who saw Fiske briefly during her
hospitalization in 2000. While under Dr. Roberts’ care, Fiske
improved “dramatically” and her affect was “brighter.”
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Strahl indicated Fiske could work. The Commissioner’s decision
gave considerable weight to Dr. Strahl’s opinion within the
relevant time inasmuch as the residual functional capacity
finding mirrors Dr. Strahl’s testimony.
Fiske contends that the ALJ’s residual functional
capacity assessment does not cite or refer to medical evidence
to support his finding. Fiske is mistaken. The ALJ reviewed
treatment notes tracking Fiske’s progress from March 2003
through February 2006. Moreover, the ALJ considered the
testimony of Dr. Stahl, who reviewed Fiske’s medical records,
listened to her testimony, and opined that Fiske was stable and
could work with some limitations.
Lastly, Fiske argues that the ALJ failed to consider
the side effects from her medications as well as her complaints
of pain and other symptoms. Fiske did not mention any limiting
pain in her disability application or during the hearing, and
her brief fails to identify the evidence the ALJ failed to
consider with any specificity.
Based on the foregoing, we conclude 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
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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