UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1272
MADELINE BROWN TANNER,
Plaintiff - Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Joseph F. Anderson, Jr., Senior
District Judge. (2:12-cv-03001-JFA)
Submitted: January 29, 2015 Decided: February 12, 2015
Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
John B. Duggan and Daniel R. Hughes, Duggan & Hughes, LLC,
Greer, South Carolina, for Appellant. Marshall Prince,
Assistant United States Attorney, Columbia, South Carolina, and
Marcelo N. Illarmo, Special Assistant United States Attorney,
Boston, Massachusetts, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
The Social Security Administration twice denied Madeline
Tanner’s claim for disability insurance benefits. After each
denial, Ms. Tanner sought review of the Commissioner’s decision
by filing suit in the United States District Court for the
District of South Carolina. The district court upheld the
agency’s second denial of benefits. Ms. Tanner appeals the
district court’s judgment, arguing that the court improperly
applied the “mandate rule” to preclude consideration of two of
her challenges to the administrative law judge’s findings.
Although the district court’s application of the mandate rule
was erroneous, we nevertheless affirm.
I.
On October 17, 2005, Ms. Tanner, then a special education
teacher, intervened in a fight between two students. During the
fight, Ms. Tanner sustained injuries to her left upper
extremity, left shoulder, and the left side of her neck. She
commenced medical treatment in 2006 for a variety of mental and
physical complaints, including chronic pain, numbness of the
extremities, PTSD, anxiety, and depression.
Ms. Tanner applied for disability insurance benefits in
December 2007. Her claim was denied initially, upon
reconsideration, and after a hearing before an administrative
law judge. Ms. Tanner filed suit against the Commissioner in
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federal district court, arguing that the ALJ (1) failed to
consider the opinions of her treating physicians; (2) failed to
properly assess her credibility; and (3) failed to consider the
effects of her impairments in combination. The magistrate
judge, to whom Ms. Tanner’s case was referred, recommended
remand for additional consideration of opinion evidence, but
rejected all of her other arguments. The district court
accepted the magistrate judge’s recommendation and vacated the
Commissioner’s decision denying Ms. Tanner disability benefits.
Upon remand, the agency held a second hearing before a
different administrative law judge. Yet again, the ALJ denied
Ms. Tanner’s claim for disability insurance benefits. Ms.
Tanner filed suit in district court, asserting arguments nearly
identical to those raised in her first suit against the
Commissioner. This time, however, the magistrate judge
recommended that the district court uphold the Commissioner’s
denial of benefits.
The magistrate judge declined to consider Ms. Tanner’s
challenges regarding the effects of her impairments in
combination and the ALJ’s adverse credibility determination.
The magistrate judge reasoned that those arguments had already
been rejected and were “secondary to [Ms. Tanner’s] main concern
about evaluation of medical source opinions.” The magistrate
judge concluded that the previous determinations constituted
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“the law of the case” and declined to depart from them. The
district court agreed with the magistrate judge’s assessment of
the issues and incorporated the recommendation into its decision
upholding the denial of benefits. Ms. Tanner timely appealed
the district court’s decision.
II.
Before us, the parties agree that the district court’s
application of the mandate rule was erroneous. Ms. Tanner
argues that the error can only be cured by a reversal of the
district court’s order and a remand of her case to the agency.
The Commissioner contends that the error is harmless. We agree
with the Commissioner.
“The mandate rule prohibits lower courts, with limited
exceptions, from considering questions that the mandate of a
higher court has laid to rest.” Doe v. Chao, 511 F.3d 461, 465
(4th Cir. 2007). An interest in finality also undergirds the
law of the case doctrine. “[W]hen a decision of an appellate
court establishes ‘the law of the case,’ it ‘must be followed in
all subsequent proceedings in the same case in the trial court
or on a later appeal . . . unless: (1) a subsequent trial
produces substantially different evidence, (2) controlling
authority has since made a contrary decision of law applicable
to the issue, or (3) the prior decision was clearly erroneous
and would work manifest injustice.’” Sejman v. Warner-Lambert
4
Co. Inc., 845 F.2d 66, 69 (4th Cir. 1988) (quoting EEOC v. Int’l
Longshoremen's Ass’n, 623 F.2d 1054 (5th Cir. 1980)).
The mandate rule is “a specific application of the law of
the case doctrine.” United States v. Bell, 5 F.3d 64, 66 (4th
Cir. 1993) (internal citation and quotation marks omitted). We
have stated in dicta that it “applies with equal authority to .
. . administrative agencies.” Scott v. Mason Coal Co., 289 F.3d
263, 267 (4th Cir. 2002). We presume without deciding that the
Social Security Administration is an agency to which the mandate
rule applies.
The magistrate judge (and by extension, the district court)
invoked the mandate rule in order to avoid reviewing the
arguments that it believed the court had previously resolved in
Ms. Tanner’s first suit against the Commissioner. The “mandate”
purportedly binding the Social Security Administration was that
on remand, it was to reconsider only certain opinion evidence in
Ms. Tanner’s record. We do not view the second ALJ’s decision
as running afoul of the mandate rule, and in any event, we have
the authority to review all of Ms. Tanner’s challenges to the
ALJ’s decision in our review for substantial evidence.
Upon remand of Ms. Tanner’s case to the agency, the first
ALJ’s decision was vacated and a different ALJ presided over Ms.
Tanner’s second hearing. At the second hearing, the ALJ
received additional medical evidence totaling more than 100
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pages and heard new testimony from Ms. Tanner and a vocational
expert. Given the inclusion of this additional evidence, the
ALJ was obliged by agency regulations to reassess Ms. Tanner’s
disability claim de novo through the date of the new decision.*
See 20 C.F.R. § 404.1520(a)(3) (stating that the agency’s five-
step sequential evaluation process requires that it consider
“all evidence in [a claimant’s] case record” when making a
disability determination). Therefore, the ALJ’s findings
regarding credibility and the combined effects of Ms. Tanner’s
impairments were based, in part, on new evidence, and as a
result, could not run afoul of the mandate set forth by the
district court.
As we explain below, even if the district court had
considered all of Ms. Tanner’s arguments against the ALJ’s
decision, reversal would not have been appropriate.
III.
“When examining an SSA disability determination, a
reviewing court is required to uphold the determination when an
ALJ has applied correct legal standards and the ALJ’s factual
*
The Social Security Administration’s Hearings, Appeals,
and Litigation Law Manual “HALLEX” notes that the Appeals
Council will vacate the entire prior decision of an
administrative law judge upon a court remand, and that the ALJ
must consider de novo all pertinent issues. HALLEX I-2-8-18,
Administrative Law Judge Decisions in Court Remand Cases.
6
findings are supported by substantial evidence.” Bird v. Comm’r
of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Johnson
v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). “In reviewing
for substantial evidence, we do not undertake to re-weigh
conflicting evidence, make credibility determinations, or
substitute our judgment for that of the Secretary.” Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). Significantly, a
district court and an appellate court apply the same standard of
review when considering a claimant’s appeal from a denial of
social security benefits.
To that end, we affirm the district court because our
independent assessment of all of Ms. Tanner’s challenges
demonstrates that the ALJ’s decision is supported by substantial
evidence.
A.
We begin with Ms. Tanner’s challenge to the ALJ’s adverse
credibility determination. This Circuit has developed, in
accordance with SSA regulations, a two-step process for
evaluating a claimant’s subjective complaints of pain. First,
there must be “a showing by objective evidence of the existence
of a medical impairment which could reasonably be expected to
produce the actual pain, in the amount and degree, alleged by
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the claimant.” Craig, 76 F.3d at 594 (internal quotation marks
omitted).
If the claimant meets this threshold obligation, the ALJ
must next evaluate the “intensity and persistence of the
claimant’s pain, and the extent to which it affects her ability
to work.” Id. at 595. The evaluation takes into account all
available evidence, including “the claimant’s medical history,
medical signs, laboratory findings, . . . evidence of the
claimant’s daily activities, specific descriptions of the pain,
and any medical treatment taken to alleviate it.” Id. The
claimant’s allegations regarding the severity and persistence of
pain cannot be dismissed solely because objective evidence of
pain is lacking; at the same time, however, the claimant’s
allegations “need not be accepted to the extent they are
inconsistent with the available evidence.” Id.
Substantial evidence supports the ALJ’s adverse credibility
determination. The ALJ concluded that Ms. Tanner’s medically
determinable impairments could reasonably be expected to cause
the symptoms alleged, but he discounted the extent of her
subjective complaints because they were inconsistent with the
medical evidence. The ALJ noted that Ms. Tanner’s self-reported
activities of daily living varied dramatically. At times, she
reported being able to participate in physical activities such
as babysitting and household chores, and at other times, she
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reported being unable to engage in previous hobbies. With
respect to her physical symptoms, the ALJ highlighted other
inconsistencies, all of which are supported by the medical
evidence of record, including complaints of numbness during some
visits to doctors and no numbness at others. Furthermore,
despite her persistent complaints of pain, Ms. Tanner has
responded relatively well to medication.
B.
Ms. Tanner’s argument that the ALJ failed to consider the
effects of her medically determinable impairments in combination
is without merit. “To be sure, an ALJ must ‘adequately explain
his or her evaluation of the combined effects of [a claimant’s]
impairments.’” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865
(4th Cir. 2014) (quoting Walker v. Bowen, 889 F.2d 47, 50 (4th
Cir. 1989)).
The ALJ did just that. He first described Ms. Tanner’s
non-severe impairments and noted that her obesity “combined with
her musculoskeletal impairments does not result in impairments
that meet or equal listing severity.” (emphasis added). The
ALJ then described Ms. Tanner’s severe impairments and
concluded that, “[t]he claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments.” It is thus clear
from the opinion that the ALJ expressly considered Ms. Tanner’s
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impairments in combination. Moreover, because Ms. Tanner made
the threshold showing of severe impairments, the ALJ was
required to continue the sequential evaluation and consider all
of her impairments, both severe and non-severe, that
significantly affect her ability to work. See 20 C.F.R. §
404.1523 (“[W]e will consider the combined effect of all of [a
claimant’s] impairments without regard to whether any such
impairment, if considered separately, would be of sufficient
severity.”). Accordingly, Ms. Tanner’s argument fails.
C.
Ms. Tanner argues that the ALJ erred when he failed to
accord the opinions of her treating medical providers great
weight. She asserts that the ALJ cherry picked medical evidence
to support his finding of non-disability. Given the several
years that medical records often span, it is inevitable that
some evidence will show signs of a claimant’s improvement and
other evidence will show signs of a claimant’s regression.
“Where conflicting evidence allows reasonable minds to differ as
to whether a claimant is disabled, the responsibility for that
decision falls on . . . the ALJ.” (internal quotation marks and
citation omitted). Craig, 76 F.3d at 589.
Our review of the ALJ’s opinion, and of the medical record,
demonstrates that the ALJ failed to expressly assign weight to a
physical Medical Source Statement completed by Dr. LeBlond in
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January 2012. However, this error is harmless because it is
clear from the ALJ’s RFC assessment that he accepted most of Dr.
LeBlond’s findings. The ALJ’s treatment of the other opinion
evidence from Drs. LeBlond, Holdren, Freeman, and Page, and Ms.
Williams, is supported by substantial evidence. Accordingly,
our discussion here is limited to an evaluation of Dr. LeBlond’s
Medical Source Statement.
In the Medical Source Statement, Dr. LeBlond opined that
Ms. Tanner can occasionally lift and/or carry less than 10
pounds in an eight-hour work day, occasionally climb, balance,
stoop, crouch, and kneel, and never crawl. It further provides
that Ms. Tanner can reach infrequently, sit in a hard chair for
10-15 minutes before needing to stand, and has difficulty
writing due to left wrist dominance. Dr. LeBlond noted that his
opinion was based primarily on Ms. Tanner’s subjective
complaints, with support from some physical findings. The ALJ
never expressly discussed or assigned weight to the Medical
Source Statement.
An ALJ is required to assign weight to every medical
opinion in a claimant’s record. 20 C.F.R. §§ 404.1527(c)
(“Regardless of its source, we will evaluate every medical
opinion we receive.”) & 404.1527(c)(2) (“We will always give
good reasons in our notice of determination or decision for the
weight we give your treating source’s opinion.”). Failure to
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assign weight to a treating physician’s opinion can result in a
reversal. See Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir.
1984) (remanding for agency’s failure to indicate the weight
given to various medical reports in the record and stating,
“[w]e cannot determine if findings are unsupported by
substantial evidence unless the Secretary explicitly indicates
the weight given to all of the relevant evidence.”)
Reversal is not warranted here, in spite of the ALJ's
error, for several reasons. First, the ALJ’s RFC assessment
reflects the credible recommendations provided in Dr. LeBlond’s
Medical Source Statement. The ALJ credited the limitation to
light or sedentary work, which requires lifting no more than 20
pounds, or no more than 10 pounds, respectively. See 20 C.F.R.
§ 404.1567. The ALJ also credited the limitation to occasional
kneeling, crouching, crawling; no climbing of ladders, ropes, or
scaffolds; and no concentrated exposure to pulmonary irritants.
Second, in the ALJ’s discussion of the assessments completed by
state agency consultants, he noted that their conclusions were
consistent with medical evidence submitted since the
reconsideration determination. This evidence would include Dr.
LeBlond’s 2012 Medical Source Statement, which suggests that, at
the very least, the ALJ considered Dr. LeBlond’s opinion in
weighing all of the evidence. Finally, reversing the ALJ’s
decision solely because he failed to assign weight to Dr.
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LeBlond’s opinion would be pointless. As noted above, the RFC
assessment and Dr. LeBlond’s opinion are largely consistent, and
it is highly unlikely, given the medical evidence of record,
that a remand to the agency would change the Commissioner’s
finding of non-disability.
D.
Ms. Tanner attacks the ALJ’s decision to accord more weight
to the opinions of non-treating, non-examining state agency
consultants than to the opinions of her treating physicians. A
“non-examining physician’s opinion cannot, by itself, serve as
substantial evidence supporting a denial of disability benefits
when it is contradicted by all of the other evidence in the
record.” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)
(emphasis in original). However, “the testimony of a non-
examining physician can be relied upon when it is consistent
with the record.” Id.
Here, while the ALJ assigned “great weight” to the opinions
of consultants who never examined or treated Ms. Tanner, he did
so because their opinions were supported by the medical evidence
as a whole. Ms. Tanner also contends that the state agency
consultants rendered conclusory opinions before important
medical evidence was introduced. We disagree with Ms. Tanner’s
characterization of the state agency consultants’ opinions.
Each opinion included notes with references to specific evidence
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from the record that supported the consultant’s findings.
Second, while the state agency consultants did not have the
benefit of a full record, the ALJ did, and he made clear that
their findings were consistent with the evidence of record,
including evidence submitted since the date of reconsideration.
E.
For the first time on appeal, Ms. Tanner argues that the
agency did not meet its burden of proof regarding her ability to
perform alternative work, because the vocational expert
concluded that, given her functional limitations, there were no
jobs that she could perform. In so contending, however, Ms.
Tanner overlooks the circumstance that the vocational expert
only reached that conclusion upon questioning from her counsel,
and that her counsel posed hypothetical questions that included
severe functional limitations not supported by the medical
evidence. Indeed, when the ALJ posed hypotheticals to the VE
that set out all of Ms. Tanner’s credible limitations, the VE
responded that Ms. Tanner could perform the jobs of packer,
assembler, marker pricer, sorter, and inspector.
IV.
Based on the foregoing, we conclude that substantial
evidence supports the agency’s 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 briefing before the court and argument would not assist
our decisional process.
AFFIRMED
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