UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2277
BETTY B. THOMPSON,
Plaintiff – Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security
Administration,
Defendant – Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Joseph F. Anderson, Jr., District
Judge. (8:09-cv-01968-JFA)
Submitted: July 19, 2011 Decided: August 10, 2011
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN & MAYES, P.A.,
Aiken, South Carolina, for Appellant. William N. Nettles,
United States Attorney, Marvin J. Caughman, Assistant United
States Attorney, Columbia, South Carolina; Thomas S. Inman,
Special Assistant United States Attorney, John Jay Lee, Acting
Regional Chief Counsel, Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Betty B. Thompson appeals the district court’s order
affirming the Commissioner’s denial of her application for
disability insurance benefits and supplemental security income,
pursuant to 42 U.S.C. §§ 405(g) (2006).
We must uphold the decision to deny benefits if the
decision is supported by substantial evidence and the correct
law was applied. Id.§ 405(g); 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.
Thompson 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) (2010). Pursuant to this process, the
Commissioner asks, in sequence, whether the claimant:
(1) worked during the alleged period of disability; (2) had a
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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
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, however, the inquiry ceases. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
First, Thompson asserts that the administrative law
judge (“ALJ”) erred in finding she could perform past relevant
work. Second, Thompson contends that, without justification,
the ALJ failed to give controlling weight to the opinion of a
treating physician. Third, she argues that the ALJ failed to
properly analyze her credibility. We find no reversible error
and, for the reasons that follow, we affirm.
I.
The issue at step four of the five-step process is
whether the claimant can perform her past relevant work; the
claimant bears the burden of establishing that she cannot.
Yuckert, 482 U.S. at 146 n.5. Thompson contends that the ALJ
committed numerous errors in determining that she could perform
her past relevant work. We examine each contention in turn.
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First, Thompson asserts that the ALJ found she had
severe mental impairments, namely depression and anxiety, and
that these impairments limited her ability to perform basic work
activities. She argues that the Commissioner’s decision that
she is not disabled is not supported by substantial evidence
because the ALJ’s questions to the vocational expert failed to
reflect these limitations. 1
We conclude that the ALJ’s hypothetical was “based
upon a consideration of all relevant evidence of record on the
claimant’s impairment.” English, 10 F.3d at 1085. The ALJ
reviewed Thompson’s depression and generalized anxiety, noted
she was successfully treated, and concluded, “[Thompson’s]
depression and anxiety do not interfere with her ability to
understand, carry out, and remember simple instructions, use
judgment, respond appropriately to supervisors, co-workers, and
usual work situations, or deal with changes in a routine work
setting.” 2
1
“In questioning a vocational expert in a social security
disability insurance hearing, the ALJ must propound hypothetical
questions to the expert that are based upon a consideration of
all relevant evidence of record on the claimant's impairment.”
English, 10 F.3d at 1085.
2
We note and distinguish decisions of the Third Circuit in
Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), and the
Eleventh Circuit in Winschel v. Comm’r of Soc. Sec., 631 F.3d
1176 (11th Cir. 2011), which found error where an ALJ’s
hypothetical failed to set forth impairments identified at step
(Continued)
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Thompson also notes that although the ALJ found she
required a sit-stand option, he failed to state how frequently
she needed to alternate between sitting and standing. She
argues that the ALJ’s finding was too vague for a proper
determination of the restriction’s impact on her RFC. Thompson
relies on Social Security Ruling (“SSR”) 96-9p, which states
that “[t]he RFC assessment must be specific as to the frequency
of the individual’s need to alternate sitting and standing.”
The purpose of SSR 96-9p is “[t]o explain the Social
Security Administration’s policies regarding the impact of a[n]
[RFC] assessment for less than a full range of sedentary work on
an individual’s ability to do other work.” SSR 96-9p (emphasis
added). Moreover, the ruling’s introduction explains that once
it has been determined that a claimant is not engaging in
substantial gainful activity (Step One), has a severe medically
determinable impairment (Step Two), which does not meet or equal
the criteria of a listing (Step Three) but prevents an
two. The Third and Eleventh Circuits both noted that “there may
be a valid explanation for this omission from the ALJ’s
hypothetical,” Ramirez, 372 F.3d at 555, but such explanation
was not supported by the record. Here, although the ALJ gave
Thompson the benefit of thea doubt at step two, finding her
depression and anxiety disorders were severe impairments, at
step four the ALJ noted that Thompson had been successfully
treated and therefore concluded that her mental residual
functional capacity (“RFC”) was not restricted.
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individual from performing past relevant work (Step Four), “it
must be determined whether the individual can do any other
work.” Id. The ruling specifies how the occupational base is
impacted when a claimant is unable to perform a full range of
sedentary work and it enumerates exertional limitations,
including a sit-stand requirement, that can erode the
occupational base. Id.
As the magistrate judge noted, SSR 96-9p is not
applicable to this case. Here, the sequential evaluation
terminated at Step Four, where Thompson had the burden of
proving she could not perform past relevant work. The
evaluation never proceeded to Step Five, where the Commissioner
would have been required to prove that Thompson could “make an
adjustment to other work.” 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v) (emphasis added); Yuckert, 482 U.S. at 146 n.5.
Thus, the Medical-Vocational Rules, Thompson’s occupational
base, and the impact of any exertional or nonexertional
limitations on that base were never in issue in this case. See
SSR 83-12 (explaining how disability determination using
Medical-Vocational Rules is based upon a claimant’s remaining
occupational base). Thompson’s medical records did not mention
a need to alternate between sitting and standing, much less
according to a schedule. The ALJ’s RFC finding and hypothetical
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were consistent with an at-will sit-stand option, and we find
that no greater specificity was required here.
Thompson next argues that the ALJ summarily concluded
that she could return to her past relevant work, but failed to
make specific findings regarding the physical and mental demands
of that work.
In determining a claimant’s ability to perform past
relevant work, the Commissioner “may use the services of
vocational experts or vocational specialists, or other
resources, such as the ‘Dictionary of Occupational Titles’ and
its companion volumes and supplements.” 20 C.F.R.
§§ 404.1560(b)(2), 416.960(b)(2). Here, the ALJ questioned the
vocational expert concerning the nature of Thompson’s previous
work. Relying on the Dictionary of Occupational Titles, the
vocational expert testified as to the skill and exertional
levels of telemarketing positions. The ALJ compared Thompson’s
residual functional capacity with the physical and mental
demands required of a telemarketer and concluded that the work
did not “require the performance of work-related activities
precluded by [Thompson’s] residual functional capacity.” We
therefore conclude that the ALJ made the required findings. 3
3
Thompson’s contention that the ALJ failed to explain how
she could work as a telemarketer, a semi-skilled occupation,
when she was restricted to simple instruction tasks rests on an
(Continued)
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II.
Thompson next asserts that the ALJ failed to properly
analyze the written opinion of Dr. Hughes, her treating
physician. She argues that the opinion of Dr. Hughes, was
entitled to controlling weight.
The Commissioner has promulgated regulations
addressing how medical opinions are to be considered in
disability determinations. See 20 C.F.R. §§ 404.1527, 416.927
(2010). The Commissioner evaluates every medical opinion
received but generally determines the weight each opinions is to
receive based on the relationship between the physician and the
claimant. Under the “treating physician rule,” a treating
physician’s opinion is given controlling weight if it is well-
supported by medically acceptable clinical evidence and not
inconsistent with other substantial evidence of record. See 20
C.F.R §§ 404.1527(d)(2), 416.927(d)(2); Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001). However, “if a physician’s
opinion is not supported by clinical evidence or if it is
inconsistent with other substantial evidence, it should be
accorded significantly less weight.” Craig v. Chater, 76 F.3d
585, 590 (4th Cir. 1996); 20 C.F.R. §§ 404.1527(d)(4),
unwarranted premise. As discussed above, the ALJ did not find
Thompson suffered from any mental restrictions.
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416.927(d)(4). “Under such circumstances, the ALJ holds the
discretion to give less weight to the testimony of a treating
physician in the face of persuasive contrary evidence.” Mastro,
270 F.3d at 178.
We believe that the ALJ’s decision to afford less
weight to Dr. Hughes’ opinion, despite his status as a treating
physician, is supported by substantial evidence. Dr. Burrus, an
orthopedist, noted that Thompson was neurologically intact and
was walking better, and encouraged her to try to return to
sedentary work. See 20 C.F.R. §§ 404.1527(d)(45), 416.927(d)(54)
(stating Commissioner gives greater weight to opinion of a
specialist about medical issues related to his or her area of
specialty). Later, Dr. McQueen examined Thompson at the request
of the Commissioner and found negative straight leg raising
tests, no muscle weakness or sensory deficit, normal gait and
“no true measurable orthopaedic impairment.” And sState agency
medical consultants opined that Thompson could perform light
work with some limitations.
In contrast, Dr. Hughes listed Thompson’s diagnoses,
but failed to explain how her conditions impacted her abilities.
Rather than providing a reasoned explanation, Dr. Hughes simply
opined in his conclusory fashion that Thompson was “permanently
and totally disabled” and “will never be able to perform
substantial gainful work activity.” Thus, Dr. Hughes’ letter
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more closely resembled an opinion on a matter reserved to the
Commissioner than a medical opinion. See 20 C.F.R.
§§ 404.1527(e), 416.927(e) (“Opinions on some issues . . . are
not medical opinions, . . . but are, instead, opinions on issues
reserved to the Commissioner because they are administrative
findings that are dispositive of a case.”). Such opinions are
not afforded any special significance. 4 See 20 C.F.R.
§§ 404.1527(e)(3), 416.927(e)(3).
III.
Finally, Thompson contends that the ALJ failed to
adequately explain why he rejected her stated reasons for being
unable to return to her past relevant work. She argues the ALJ
never specifically explained why he found Thompson not credible
at the hearing. We believe the ALJ’s credibility determination
is supported by substantial evidence.
“[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. Once a threshold determination is made that
4
Thompson asserts that if the ALJ found Dr. Hughes’ letter
statement was lacking in specificity, he should have contacted
Dr. Hughes for clarification. Regulations may require such
action recontact when evidence is inadequate to determine
whether a claimant is disabled, . sSee 20 C.F.R.
§§ 404.1527(c)(3), 416.927(c)(3), but here . Here, the ALJ had
sufficient evidence to reach a decision.
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objective medical evidence shows the existence of a medical
impairment which could reasonably be expected to produce the
pain alleged, “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) (2010).
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. The ALJ clearly complied with
these requirements.
IV.
Based on the foregoing, we find that substantial
evidence supports the agency decision, and 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
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