UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1574

EVANGELINE G. SMITH,

Plaintiff - Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant - Appellee.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Max O. Cogburn, Jr., 

District Judge. (3:09-cv-00488-MOC-DSC)

Submitted: November 30, 2011 Decided: December 14, 2011

Before DAVIS, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David J. Cortes, ROBERTI, WITTENBERG, LAUFFER AND WICKER, 

Durham, North Carolina, for Appellant. Anne M. Tompkins, United 

States Attorney, Jennifer A. Youngs, Assistant United States 

Attorney, Lisa G. Smoller, Special Assistant United States 

Attorney, Boston, Massachusetts, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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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 income. 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 42 U.S.C. § 405(g) (2006)). 

“Substantial evidence is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Id.

(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.

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 the 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 physician (or psychologist) designated 
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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 

planovalgus, 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, 42 U.S.C. § 405(h) [(2006)].”). Additionally, 
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although the ALJ’s explanation was cursory, we are satisfied 

that the ALJ considered the records Smith cites. Reading the 

ALJ’s decision as a whole, substantial evidence supports the 

finding at step three of the sequential evaluation process as 

the ALJ’s analysis at subsequent steps of the evaluation are 

inconsistent with meeting Listing 1.02. See Fischer-Ross v. 

Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005) (rejecting per 

se rule that failure to provide sufficient explanation at step 

three requires remand and holding that ALJ’s finding at other 

steps of sequential evaluation may provide basis for upholding 

step three finding).

Smith also contends that the ALJ’s pain analysis was 

deficient in several respects. She argues that the claimant 

carries a heavy burden at step one of the pain analysis and that 

step two is a de minimis test designed to weed out only spurious 

claims. Smith further asserts that, once a claimant satisfies 

step one by producing medical evidence demonstrating the 

existence of an impairment which could reasonably be expected to 

produce the pain alleged, the claimant is entitled to the 

benefit of “great weight” rule, recognized by Craig v. Chater,

76 F.3d 585 (4th Cir. 1996), affording the claimant’s statements 

regarding the severity and limiting effects of pain a 

presumption of credibility. Smith argues that the ALJ committed 
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reversible error in failing to make an explicit step one finding 

and in failing to apply the great weight rule. 

“[T]he determination of whether a person is disabled 

by pain or other symptoms is a two-step 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 produce 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. 20 C.F.R. 

§§ 404.1529(a), 416.929(a) (2011). The relevant factors in 

evaluating the claimant’s statements include consistency in the 

claimant’s statements, medical evidence, medical treatment 

history, and the adjudicator’s observations of the claimant. 

See SSR 96-7p, 1996 WL 374186, at *5-*8.

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 
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for entitlement to benefits.” 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, 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 of 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.
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Smith’s final argument is based on her observation

that Dr. Davis opined that 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 give Dr. Davis’ opinion

controlling weight because the ALJ neither mentioned that

opinion nor cited contrary evidence. Smith asserts that if Dr. 

Davis’ opinion is given controlling weight, the ALJ’s conclusion 

that she can perform sedentary work is not supported by 

substantial evidence. 

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 consistent 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.
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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 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED