                             UNPUBLISHED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Affirmed by unpublished opinion.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         the
opinion, in which Chief Judge Gregory and Judge Motz joined.


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
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Unpublished opinions are not binding precedent in this circuit.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.                          On that

date,   Cuffee    sustained     bilateral         open      tibial   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

                                           3
of the shooting incident and corrective surgery, through July 9,

2010, the date of the ALJ’s Decision. 1                        Cuffee appealed ALJ

Vest’s     Decision    to    SSA’s    Appeals         Council,   which   denied   her

request for review.          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       surgery.        Cuffee’s       application      for   benefits    was

denied      initially       on    January        5,     2012     and   denied     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

      1Sedentary 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.
                                            4
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                Cuffee appealed ALJ

Pianin’s    Decision     to    the   Appeals    Counsel,      which   denied     her

request    for   review,      making   ALJ    Pianin’s    Decision    the     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.                  On April 15, 2015,

the   district   court     referred     the    matter    to    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

      3Light 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).
                                        5
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

                                          6
F.3d    470,      472       (4th           Cir.   2012)    (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

[ALJ].”       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).          The    ALJ       determines        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).           Fourth, the ALJ considers the claimant’s residual

functional       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   perform         alternative           work    that    exists        in    significant

numbers     in    the       national          economy.      Id.      §§    404.1520(a)(4)(v),

404.1560(c).           The claimant bears the burden of proof for the

                                                   7
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   evidentiary    weight      the   Commissioner     would   accord

prior     RFC    determinations         during       subsequent     disability

applications.    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),   the

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      which the prior finding was
           based is subject to      change with the passage of
           time, such as a fact     relating to the severity of
           a claimant’s medical     condition;

        (2) the likelihood of such a change, considering
           the length of time that has elapsed between the

                                      8
          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)     (S.S.A.       Jan.    12,       2000),    2000     WL    43774     (emphasis

added).      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       in     order     to     comply    with       AR     00–1(4);    rather,

reviewing      and    evaluating           all   the   evidence        presented      at   the

correct standard complies with the acquiescence ruling.”                                 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    by

substantial evidence.

       Appellant          asserts     that       because    the        nerve    damage     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


                                                 9
between    the     two     RFC      determinations         was     too    little       time    to

warrant departure from the earlier determination.                                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,”       she      nonetheless     contends         that     “it    is     utterly

inconceivable          that     Ms.    Cuffee’s       condition           was    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     two    years    after”       ALJ    Vest’s

earlier RFC determination.                  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.”                         Id. at 23.

     The       Commissioner         further    notes       that     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.                  See also

                                              10
Gross      v.   Heckler,       785     F.2d        1163,     1166        (4th       Cir.     1986)

(explaining that while medical conditions may exist, “none of

[claimant’s]      ailments        automatically           entitle    him       to    disability

benefits”).           “In    other   words,        a    condition        or    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     to     follow        the         prior      RFC        determination.

Furthermore,          even    though       appellant’s           nerve     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   his    evaluation       of   appellant’s           functional        limitations,            ALJ

Pianin      noted       several      factors            which      reflect          plaintiff’s

improvement      in     functioning        between        the    first        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        leg   pain,       treated      her        pain

                                              11
conservatively    with     over-the-counter                medication,   and   capably

performed    activities         of     daily         living     (bathing,      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 long-

term 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    does    not    respond         directly      to    appellant’s     third

argument    (regarding    the        weight     to    be    attributed    to   the   new

medical    evidence),     but    notes        that     Dr.     Grady’s   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.    Viewed alongside the evidence (discussed above) which

indicates   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.



                                           12
     In    sum,   the   ALJ’s   decision   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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