Betty Thompson v. Michael Astrue
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:09-cv-01968-JFA Copies to all parties and the district court/agency. [998651592]. Mailed to: John Lee. [10-2277]
Appeal: 10-2277
Document: 24
Date Filed: 08/10/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2277
BETTY B. THOMPSON,
Plaintiff – Appellant,
v.
MICHAEL
J.
ASTRUE,
Administration,
Commissioner
of
Social
Security
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
Johnson, 434 F.3d at 653
adequate to support a conclusion.”
(internal quotation marks omitted).
evidence
whether
“[w]here
or
a
make
credibility
decision
is
conflicting
This court does not reweigh
determinations
supported
evidence
by
allows
in
substantial
evidence;
reasonable
minds
differ,” we defer to the Commissioner’s decision.
Thompson
disabled
within
bears
the
the
burden
meaning
of
of
the
evaluating
Id.
proving
Social
to
that
she
Security
is
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.
416.920(a)(4)
Commissioner
(2010).
asks,
20 C.F.R. §§ 404.1520(a)(4),
Pursuant
in
sequence,
to
this
whether
process,
the
the
claimant:
(1) worked during the alleged period of disability; (2) had a
2
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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.
146 n.5 (1987).
See Bowen v. Yuckert, 482 U.S. 137,
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
Yuckert, 482 U.S. at 146 n.5.
establishing
that
she
cannot.
Thompson contends that the ALJ
committed numerous errors in determining that she could perform
her past relevant work.
We examine each contention in turn.
3
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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
reviewed
she
impairment.”
Thompson’s
was
depression
successfully
depression
understand,
and
anxiety
carry
English,
out,
and
treated,
do
and
10
not
F.3d
at
1085.
generalized
and
remember
anxiety,
concluded,
interfere
with
simple
The
ALJ
noted
“[Thompson’s]
her
ability
instructions,
to
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)
4
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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
argues
to
that
alternate
the
ALJ’s
between
finding
sitting
was
too
and
standing.
vague
for
determination of the restriction’s impact on her RFC.
a
She
proper
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.”
added).
it
has
SSR 96-9p (emphasis
Moreover, the ruling’s introduction explains that once
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.
5
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individual from performing past relevant work (Step Four), “it
must
be
work.”
determined
Id.
whether
the
individual
can
do
any
other
The ruling specifies how the occupational base is
impacted when a claimant is unable to perform a full range of
sedentary
work
including
a
and
it
enumerates
sit-stand
occupational base.
As
the
requirement,
magistrate
to
this
terminated
at
Step
Four,
judge
could
not
noted,
Here,
case.
she
that
limitations,
can
erode
the
Id.
applicable
proving
exertional
the
where
perform
96-9p
sequential
Thompson
past
SSR
had
the
relevant
is
not
evaluation
burden
work.
of
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
base,
and
the
impact
of
Rules,
any
Thompson’s
exertional
or
occupational
nonexertional
limitations on that base were never in issue in this case.
SSR
83-12
(explaining
how
disability
determination
See
using
Medical-Vocational Rules is based upon a claimant’s remaining
occupational base).
a
need
to
alternate
Thompson’s medical records did not mention
between
according to a schedule.
sitting
and
standing,
much
less
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,
vocational
the
Commissioner
experts
or
“may
vocational
use
the
services
specialists,
or
of
other
resources, such as the ‘Dictionary of Occupational Titles’ and
its
companion
volumes
and
supplements.”
§§ 404.1560(b)(2), 416.960(b)(2).
20
C.F.R.
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
levels of telemarketing positions.
residual
functional
capacity
with
the
skill
and
exertional
The ALJ compared Thompson’s
the
physical
and
mental
demands required of a telemarketer and concluded that the work
did
not
precluded
“require
by
the
performance
[Thompson’s]
residual
of
work-related
functional
activities
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
physician.
She
opinion
argues
that
of
Dr.
the
Hughes,
opinion
of
her
Dr.
treating
Hughes,
was
entitled to controlling weight.
The
addressing
Commissioner
how
medical
The
promulgated
opinions
disability determinations.
(2010).
has
are
to
be
regulations
considered
in
See 20 C.F.R. §§ 404.1527, 416.927
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 wellsupported
by
medically
acceptable
clinical
evidence
and
inconsistent with other substantial evidence of record.
C.F.R
F.3d
§§ 404.1527(d)(2),
171,
opinion
178
is
inconsistent
not
416.927(d)(2);
(4th Cir. 2001).
supported
with
other
by
However,
clinical
substantial
accorded significantly less weight.”
585,
590
(4th
Cir.
1996);
Mastro
20
“if
evidence
evidence,
v.
a
or
it
not
See 20
Apfel,
270
physician’s
if
it
is
should
be
Craig v. Chater, 76 F.3d
C.F.R.
§§ 404.1527(d)(4),
unwarranted premise.
As discussed above, the ALJ did not find
Thompson suffered from any mental restrictions.
8
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416.927(d)(4).
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“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).
of
the
Later, Dr. McQueen examined Thompson at the request
Commissioner
and
found
negative
straight
leg
raising
tests, no muscle weakness or sensory deficit, normal gait and
“no true measurable orthopaedic impairment.”
medical
consultants
opined
that
Thompson
And sState agency
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
substantial gainful work activity.”
9
never
be
able
to
perform
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
findings that are dispositive of a case.”).
not
afforded
any
special
are
administrative
Such opinions are
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
76 F.3d at 594.
symptoms
is
a
two-step
process.”
Craig,
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.
10
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objective
Date Filed: 08/10/2011
medical
evidence
shows
Page: 11 of 11
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.
Factors
in
consistency
20
C.F.R.
evaluating
in
the
§§ 404.1529(a),
the
claimant’s
claimant’s
416.,929(a)
(2010).
statements
include
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
11
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