Lisa Dunn v. Carolyn Colvin

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:13-cv-00222-JAG Copies to all parties and the district court/agency. [999593534].. [14-1565]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1565

LISA DUNN,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,
Administration,

Acting

Commissioner,

Social

Security

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:13-cv-00222-JAG)

Argued:

March 25, 2015

Decided:

June 1, 2015

Before MOTZ and GREGORY, Circuit Judges, and Mary G. LEWIS,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by unpublished opinion. Judge Lewis wrote the opinion,
in which Judge Motz and Judge Gregory joined.

ARGUED: Bruce Knight Billman, Fredericksburg, Virginia, for
Appellant. Elizabeth Wu, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
ON BRIEF: Nora Koch, Acting
Regional Chief Counsel, Taryn Jasner, Supervisory Attorney,
Meriah Russell, 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.

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Unpublished opinions are not binding precedent in this circuit.

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MARY GEIGER LEWIS, District Judge:
Lisa Dunn (Appellant) brought this action under 42 U.S.C.
§

405(g)

in

the

district

court

of

the

Eastern

District

of

Virginia seeking judicial review of the final decision of the
Commissioner

of

the

Social

Security

Administration

(Appellee)

denying her application for disability insurance benefits (DIB).
Appellant, a high school graduate, was born on May 19, 1973.
She has previously worked as a waitress, para-educator, daycare
worker, bookkeeper, and cashier.
disabled

on

May

1,

2007,

She alleged that she became

based

on

rheumatoid

fibromyalgia, headaches, depression, and anxiety.

arthritis,
As noted by

Appellant at oral argument, however, this case is concerned only
with her psychiatric problems.
The parties filed cross-motions for summary judgment, which
were

referred

to

the

magistrate

Recommendation (Report).

judge

for

a

Report

and

In the magistrate judge’s Report, he

suggested that the district court grant Appellee’s motion for
summary
judgment.

judgment

and

Appellant

district

court

granted

Appellee’s

deny
filed

overruled

the

motion

Appellant’s
objections

motion
to

objections,
for

summary

the

for

summary

Report.

adopted

The

the

Report,

judgment,

denied

Appellant’s motion for summary judgment, and affirmed Appellee’s
final decision denying Appellant’s claim for DIB.

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Appellant then timely filed her notice of appeal with this
Court.

We

42 U.S.C.

have

§ 405(g)

jurisdiction
and

28

to

consider

U.S.C.

§

her

1291.

appeal

under

Discerning

no

reversible error, we affirm.

I.
In

a

Social

Security

case

such

as

this,

it

is

the

plaintiff’s duty to both produce evidence and prove that she is
disabled under
§ 405(g).
1995).

the

Social

Security

Act,

§

205(g),

42

U.S.C.

See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.

Our review of the decision of the Administrative Law

Judge (ALJ) in an action involving disability benefits is quite
limited.

We must uphold the ALJ’s factual findings if they are

supported by substantial evidence and reached by applying the
correct legal standard.
(4th

Cir.

evidence

as

2012).
a

Hancock v. Astrue, 667 F.3d 470, 472

“Substantial

reasonable

mind

evidence

might

is

accept

such
as

relevant

adequate

to

support a conclusion.”

Craig v. Chater, 76 F.3d 585, 589 (4th

Cir.

citations

1996)

omitted).

(internal
It

“consists

of

more

omitted)
than

a

(quotation
mere

marks

scintilla

of

evidence but may be less than a preponderance.” Smith v. Chater,
99 F.3d 635, 638 (4th Cir. 1996).
When we review whether substantial evidence supports the
findings of the ALJ, “we do not undertake to reweigh conflicting
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evidence,

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make

credibility

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determinations,

judgment for that of the [ALJ].”

or

substitute

our

Johnson v. Barnhart, 434 F.3d

650, 653 (4th Cir. 2005) (internal citations and quotation marks
omitted).
to

“Where conflicting evidence allows reasonable minds

differ

as

to

whether

a

claimant

.

.

.

is

disabled,

responsibility for that decision falls on [the ALJ].”
F.3d at 589.

the

Craig, 76

“[T]he substantial evidence standard ‘presupposes

. . . a zone of choice within which the decisionmakers can go
either

way,

without

administrative

interference

decision

is

not

by

subject

the
to

courts.
reversal

An
merely

because substantial evidence would have supported an opposite
decision.’”

Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.

1988) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984)) (internal citation omitted).
Consequently,
province

of

the

it

is

courts

beyond
to

dispute

resolve

that

factual

it

is

matters

not

in

the

Social

Security cases such as this de novo. “At the same time, they
must
escape

not

abdicate

their

duty

their
to

traditional

scrutinize

‘the

functions;

they

record

a

as

whole’

determine whether the conclusions reached are rational.”
v.

Celebrezze,

331

F.2d

541,

543

(4th

Cir.

1964)

cannot

Thomas
(quoting

Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 490 (1951)).

5

to

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II.
The Social Security Administration has established a fivestep sequential evaluation process for determining if a person
is

disabled.

20

C.F.R.

§

404.1520(a)(4)(i-v)

(2004).

In

relevant part, the Code of Federal Regulations provides:
At the first step, we consider your work
activity, if any.
If you are doing substantial
gainful activity, we will find that you are not
disabled....
At the second step, we consider the medical
severity of your impairment(s). If you do not have a
severe medically determinable physical or mental
impairment that meets the duration requirement in [20
C.F.R.] § 404.1509, or a combination of impairments
that is severe and meets the duration requirement, we
will find that you are not disabled....
At the third step, we also consider the medical
severity of your impairment(s).
If you have an
impairment(s) that meets or equals one of our listings
in appendix 1 of this subpart and meets the duration
requirement, we will find that you are disabled....
At the fourth step, we consider our assessment of
your residual functional capacity and your past
relevant work. If you can still do your past relevant
work, we will find that you are not disabled....
At the fifth and last step, we consider our
assessment of your residual functional capacity and
your age, education, and work experience to see if you
can make an adjustment to other work. If you can make
an adjustment to other work, we will find that you are
not disabled. If you cannot make an adjustment to
other work, we will find that you are disabled.
Id.
The

parties

agree

that:

(1)

Appellant

is

not

currently

engaged in any substantial gainful activity; (2) Appellant has
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several

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medically

Appellant’s

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determinable

severe

impairments

severe
do

not

impairments,
meet

or

(3)

equal

an

impairment in any of Appellee’s Listing of Impairments, and, (4)
Appellant’s impairments prevent her from returning to her past
relevant

work.

They

disagree,

however,

as

to

Appellant’s

residual functional capacity--key to determining whether she is
able to do other work.

III.
There are two issues presented by this appeal: (1) whether
the ALJ was correct in his decision not to give the opinion of
the treating physician controlling weight, and (2) whether, in
making his credibility determination as to Appellant, the ALJ
erred

in

his

Appellant’s

consideration

treatment

and

of

her

medications as prescribed.

the

conservative

non-compliance

with

nature
taking

of
her

We will consider these issues in

turn.

A.
First, Appellant contends that the ALJ erred in assigning
limited weight to the opinions of her treating physician, Dr.
John

Swing,

Gosnell.

and

her

treating

We are unconvinced.

7

psychiatric

counselor,

Betty

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When evaluating medical opinions, the ALJ should consider
“(1) whether the physician has examined the applicant, (2) the
treatment relationship between the physician and the applicant,
(3)

the

supportability

of

the

physician’s

opinion,

(4)

the

consistency of the opinion with the record, and (5) whether the
physician is a specialist.”

Johnson, 434 F.3d at 654.

An ALJ’s determination as to the weight to be assigned to a
medical

opinion

indication

generally

that

the

will
ALJ

not
has

be

disturbed

dredged

up

absent

some

“specious

inconsistencies,” Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th
Cir. 1992), or has failed to give a sufficient reason for the
weight

afforded

a

particular

opinion,

see

20

C.F.R.

§ 404.1527(d) (1998).
According to 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2), a
treating source’s opinion on issues of the nature and severity
of the impairments will be given controlling weight when well
supported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques and when the opinion is consistent with
the

other

substantial

evidence

in

the

record.

Conversely,

however, “the ALJ holds the discretion to give less weight to
the testimony of a treating physician in the face of persuasive
contrary evidence.”

Mastro v. Apfel, 270 F.3d 171, 178 (4th

Cir. 2001); see also Craig, 76 F.3d at 590 (finding that “if a
physician’s opinion in not supported by clinical evidence or if
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it is inconsistent with other substantial evidence, it should be
accorded significantly less weight”).
Of course, a medical expert’s opinion as to whether one is
disabled

is

not

dispositive;

opinions

as

to

reserved for the ALJ and for the ALJ alone.
404.1527(e)(1) (1998).
presents
better
given.

relevant

that

he

disability

are

See 20 C.F.R. §

Generally, the more the medical source

evidence

explains

to

it,

support

the

more

his

opinion,

weight

his

and

opinion

the
is

See 20 C.F.R. § 404.1527(d)(3) (1998). Additionally, the

more consistent the opinion is with the record as a whole, the
more

weight

the

ALJ

will

give

to

it.

See

20

C.F.R.

§ 404.1527(d)(4) (1998).
In rendering his decision on this issue, the ALJ considered
the opinions of four medical sources:

(1) John Swing, M.D.; (2)

Betty Gosnell, L.P.C; (3) Martha Merrion, Ph.D.; and (4) Sandra
Francis, Ph.D.
As the ALJ noted in his decision, Appellant came to Dr.
Swing

on

anxiety.”

March

7,

J.A. 10. ∗

2007,

“due

to

worsening

depression

and

“She complained of anhedonia, decreased

motivation, and increased crying.

∗

On exam she had depressed

Citations herein to “J.A.” refer to the contents of the
Joint Appendix filed by the parties in this appeal; and
citations to “A.R.” refer to the Social Security Administrative
Record that Appellee filed with the district court.

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and

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congruent

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affect.”

Id.

“On

April

4,

2007,

reported her medications were causing her to be jittery.
noted to continue to be anxious.”

she
She

Id.

Appellant came to Dr. Swing again on May 30, 2007, and
“expressed . . . increased depression and sadness, and decreased
sleep.”

Id.

The next time Appellant saw Dr. Swing was on July

16, 2007, at which time “she expressed that she was going to get
a new job, because her current job was causing too much stress.
She was cooperative and talkative.
stable.”

She was noted to be fairly

Id.

In Dr. Swing’s “Psychiatry Progress Note” on August 16,
2007, “he noted that her depression was largely under control,
but her [anxiety] persisted.

She reported that she was much

better overall, and she was noted as to be calm.”

Id.

He also

noted that she had “no suicidal or homicidal ideation.”

Id.

The ALJ noted that Appellant returned to Dr. Swing on November
13, 2007, at which time “[s]he reported feeling overwhelmed,
depressed and anxious.”

Id.

Thereafter, on December 4, 2007,

“she complained of feeling ‘discouraged.’”

Id.

On January 10, 2008, the ALJ noted from Dr. Swing’s records
that Appellant “was pleasant, calm, and cooperative, with no
suicidal or homicidal ideation.
Id.

She was noted to be improving.”

Appellant saw Dr. Swing again on March 3, 2008.

reported

anxiety

due

to

her

recent
10

medical

course,

and

“She
was

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Id. at 12.

During Appellant’s March 31,

2008, appointment with Dr. Swing, she “reported having tremors
from the medications.
During

She was anxious.”

Appellant’s

June

10,

Id.

2008,

appointment

with

Dr.

Swing, he “noted that [Appellant’s] mild anxiety persisted.

He

also marked that she had no homicidal or suicidal ideation.”
Id. at 13.

Then, during Appellant’s July 8, 2008, appointment

with Dr. Swing, “she was reportedly calm with no homicidal or
suicidal ideation.”
2008.
felt

Id.
that

Id.

Appellant saw Dr. Swing on October 20,

At that time, she “reported to Dr. Swing that she
she

was

doing

okay.

She

reported

some

anxiety, and was taking extra Xanax during the day.”

increased

Id.

Appellant returned to Dr. Swing on January 22, 2009.
at 14.
taking

“She was quiet and calm.
her

full

dosage

of

She reported that she was not

medication

afford it, but believed she needed it.
suicidal or homicidal ideation.”
appointment

on

April

homicidal ideation.
appointment,
crying.”

Id.

“she

16,
Id.

because

she

could

not

She was stable, with no

Id. at 14.

2009,

Id.

“[s]he

During Appellant’s

had

no

suicidal

or

During Appellant’s April 21, 2009,

complained

[of]

depression

and

increased

Appellant reported on May 14, 2009, that “she had

not started a prescribed medication.
homicidal ideation.”

Id.

There was no suicidal or

And then “[o]n June 18, 2009, she was

mostly calm, but was slight[ly] anxious at times.”
11

Id.

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According

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to

the

ALJ,

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in

regards

to

Betty

Gosnell,

Appellant’s counselor,
Treatment notes from [Appellant’s] counselor in 2009
reflect that [Appellant] was reporting generalized
fatigue and pain, but her boyfriend was being a bit
more attentive to her. She noted positive experience
from the neurofeedback sessions and expressed this
[at] each appointment.
Treatment notes dated
November 4, 2009[], reflect that [Appellant] was in
good spirits, had a goal of cooking more healthy
foods for her family, and she was cooking more from
scratch to save money at the grocery store.
Id. at 15 (citations omitted).

There appears to be no dispute

as to the ALJ’s finding on this issue and, thus, we need not
discuss it here except to say that the ALJ’s summarization of
Gosnell’s notes are in accord with our own review of the notes.
Dr. Swing completed a Mental Impairment Questionnaire on
January 21, 2009, in which he checked “severe” as it relates to
eleven

of

a

abilities.

list

of

twenty

of

Appellant’s

A.R. 893-94; see also J.A. 18.

work-related

“Severe indicates

that the activity is totally precluded on a sustained basis and
would

result

minutes.”

in

failing

A.R. 893.

after

limitations:

“work[ing]

coordination

without

being

short

duration:

5-10

Dr. Swing marked as severe the following

work-related
in

even

distracted,”

needing
with

or

“special
[in]

“mak[ing]

supervision,”

proximity
simple

to

work

others
related

decisions,” “complet[ing] a normal workday and work week without
interruptions

from

psychologically

12

based

symptoms

and

.

.

.

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perform[ing] at a consistent pace without an unreasonable number
and

length

general

of

rests,”

public

responding

or

“interact[ing]

customers,”

appropriately

to

appropriately

“accept[ing]
criticism

with

the

instructions

and

from

supervisors,”

“get[ting] along with co-workers or peers without distracting
them or exhibiting behavioral extremes,” “maintain[ing] socially
appropriate behavior and . . . adher[ing] to basic standards of
neatness

and

expected

changes

goals

or

cleanliness,”
in

mak[ing]

the

“respond[ing]

work

plans

setting,”

appropriately

“set[ting]

independently,”

and

realistic

“travel[ing]

unfamiliar settings and us[ing] public transportation.”
893-94.
limited

to

in

A.R.

However, the ALJ was permitted to afford these opinions
weight,

to

the

extent

that

other medical evidence in the record.

they

are

controverted

by

See Meyer v. Colvin, 754

F.3d 251, 256 (4th Cir. 2014).
Gosnell, who provided therapy for Appellant from June 27,
2007,

until

July

22,

2008,

three

to

four

times

a

month,

completed a mental status evaluation on July 29, 2008, which the
ALJ summarized as follows:
Ms.
Gosnell
opined
that
she
did
not
believe
[Appellant] was able to maintain a job at the time
she completed the mental status evaluation form.
[On] January 5, 2009, Ms. Gosnell indicated that the
[Appellant] had mild-to-moderate impairments in her
ability to perform activities of daily living, and
marked impairments in ability to maintain social
relationships
and
in
maintaining
concentration,
persistence, and pace.
She opined that [Appellant]
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had severe impairments in her ability to maintain
attention and concentration for at least 2 straight
hours;
sustain
an
ordinary
routine
without
supervision, to complete a normal workday without
interruptions from psychologically based symptoms and
perform at a consistent pace without an unreasonable
number and length of rests; to respond appropriately
to expected and unexpected changes in the work
setting, and to travel in unfamiliar settings and use
public transport.
She opined that [Appellant] would
have moderately severe limitations in her ability to
set realistic goals, to accept instructions and
respond appropriately to criticism from supervisors;
to ask simple instructions or request assistance from
supervisors; to work in coordination or proximity to
others without being distracted; to make simple work
decisions; and to understand, remember, and carry out
detailed instructions.
She indicated that the
claimant would be moderately limited in her ability
to remember locations and work-like procedures, to
understand[,] remember, and carry [ ] out simple
instructions, to interact appropriately with the
general public, and to be aware of normal hazards and
take necessary precautions.
J.A. 17.

Having reviewed Gosnell’s mental status evaluation for

ourselves, we think that the ALJ has correctly summarized it,
and there appears to be no argument to the contrary.
Dr. Merrion of the Virginia Department of Rehabilitative
Services examined Appellant on February 26, 2009.
Dr.

Merrion

found

Appellant

“capable

of

doing

A.R. 907.
simple

and

repetitive tasks consistently well if she were not as dependent
as she is.”

Id. at 911.

Dr. Merrion also stated that Appellant

“could take supervision and follow directions[,] but supervisors
would tend to be exasperated with her. . . .

Working with too

many

render

coworkers

or

the

public

would

14

tend

to

her

less

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efficient.

.

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.

.

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[Appellant]

has

a

mildly

to

moderately

impaired ability to deal with the normal stressors and demands
encountered in competitive employment.”
Dr.

Francis,

the

last

Id.

non-examining

State

Agency

psychologist to review Appellant’s records for Appellee prior to
the

hearing

before

the

ALJ,

concluded

that,

“[d]ue

to

her

psychiatric impairments, [Appellant] is . . . limited to tasks
that

only

require

limited

contact

with

involving simple, unskilled work tasks.”

the

general

J.A. 18.

public,

To be more

specific, Dr. Francis stated that Appellant “is able to meet the
basic demands of competitive work on a sustained basis despite
the limitations stemming from her mental impairments.

She is

capable of simple routine work in a nonstressful environment
with limited contact with the public and coworkers.

A.R. 929.

Based upon all of the medical evidence, the ALJ gave the
opinion

of

consistent

Dr.

Francis

with

[Appellant].”
weight

to

inconsistent

objective
J.A.

the

[Appellant’s]

“significant

opinions

with

their

findings

made

Further,

18.

treating

weight

the

of

Dr.

treatment

[Appellant’s] medical records.”

Id.

upon
ALJ

Swing

psychiatric

because

and

was]

examination

“assigned

sources,
notes

[it

Ms.
as

contained

of

limited
Gosnell,

they

are

throughout

As to Dr. Merrion, the ALJ

gave her opinion “greater but not controlling weight because she
had the opportunity to examine [Appellant], but only saw her on
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one occasion.”

Id.

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We are of the opinion that substantial

evidence supports the ALJ’s decision to assign the weight that
he did to the various medical opinions.
We must defer to the ALJ’s assignments of weight unless
they are not supported by substantial evidence.
F.3d at 472.

Hancock, 667

Here, some of Dr. Swing’s treatment notes suggest

that Appellant experienced periods of improvement.

For example,

Dr. Swing wrote “[o]n January 10, 2008, [that Appellant] was
pleasant, calm and cooperative, with no suicidal or homicidal
ideation.

She was noted to be improving.”

J.A. 10.

And “[o]n

June 18, 2009, she was mostly calm, but was slight[ly] anxious
at times.”

Id.

Simply stated, there is more than a “scintilla

of evidence” in the record supporting the ALJ’s conclusion that
Dr. Swing’s opinion is incongruent with both his own treatment
notes and some of the other medical evidence in the record.
In the medical opinion that Gosnell presented to the ALJ,
“Ms. Gosnell opined that she did not believe [Appellant] was
able to maintain a job at the time she completed the mental
status evaluation form” on July 29, 2008.

Id. at 17.

Under our

deferential standard of review, there is enough evidence in the
record to support the ALJ’s decision to accord this opinion less
weight.
During
Gosnell,

she

Appellant’s
stated

October

that

she

5,

was

16

2007,
“feeling

appointment
better

and

with
more

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She also told Gosnell that she was “willing to try

to venture out a bit and look for a job.”

A.R. 948.

At

Appellant’s October 15, 2007, appointment, Gosnell wrote in her
notes that Appellant “is excited about [a] possible job at Rite
Aid.

She is eager to be interviewed and feels that she has a

good shot at it.”

Id.

Appellant also reported that “she is optimistic and upbeat
in the face of financial and relationship problems.

She is

better to get out of the house and says that she believes that
neurofeedback has been helpful.”

Id.

At Appellant’s October

19, 2007, session, she said that she was “doing pretty well but
feeling achy.

Her first interview went well.”

Id.

“She has

been able to drive to her appointments and tend to her families’
needs.

This energizes her.”

And,

then

on

June

23,

Id.
2009,

just

weeks

before

Gosnell

completed her mental evaluation for Appellant, she stated in her
notes that Appellant reported that “[s]ummer is going pretty
well.”

A.R. 957.

“[Appellant] is enjoying the warmer weather

and longer periods of daylight.

She says that life does not

seem as overwhelming in the summer time. She is getting more
physical exercise than in cold weather.”
noted

that

Appellant

“reports

that

that

Id.
helps

Gosnell also
quite

a

bit.

Relationship is going okay right now although she struggles with
his parents and his relationship with his mother.”
17

Id.

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Thus, as with Dr. Swing’s opinion, a reasonable mind might
agree with the ALJ’s finding that Gosnell’s opinion does not
comport with her own treatment notes or with other evidence in
the record.
weight

to

We hold that the ALJ’s decision to accord limited
Gosnell’s

and

Swing’s

opinions

is

supported

by

substantial evidence.

B.
Second, Appellant argues that the ALJ erred in considering
the conservative nature of Appellant’s treatment and her noncompliance in determining whether she was credible.

We are

unpersuaded.
On this issue, the ALJ stated the following:
[Appellant’s]
testimony
regarding
her
extreme
symptoms
and
limitations
is
not
credible.
[Appellant] has not generally received the type of
medical treatment one would expect for a totally
disabled
individual.
Although
[Appellant]
has
received
treatment
for
the
allegedly
disabling
impairments, that treatment has been essentially
routine and conservative in nature.
Further the
record shows that [Appellant] has not been compliant
with recommended treatment. Treatment notes from Dr.
Swing indicate compliance issues with medications,
where [Appellant] had failed to start medications as
prescribed, or had self-discontinued medications.
Treatment notes from [Appellant’s] primary care
physician, as recent as November 2010, also show
[Appellant] having compliance issues [and] selfdiscontinuing
medications.
While
[Appellant]
complained of migraine headaches and rheumatoid
arthritis, the record shows that these have been
responsive to treatment, including medications and
trigger point injections.
[Appellant’s] routine and
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conservative treatment and failure to comply with her
treatment
regimen
diminishes
her
credibility
regarding the frequency and severity of her symptoms,
and the extent of her functional limitations.
J.A.

17

(internal

citation

omitted).

As

already

noted,

in

reviewing whether substantial evidence supports the findings of
the ALJ, “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.

1.
Prior to the ALJ’s consideration of Step Four of the fivestep

sequential

plaintiff’s

evaluation,

Residual

the

Functional

§§ 416.920(e)-(f), 416.945(a)(1).

ALJ

Capacity

must

determine

(RFC).

20

C.F.R.

Under SSR 83-10, one’s RFC is

[a] medical assessment of what an individual can do
in a work setting in spite of the functional
limitations and environmental restrictions imposed by
all
of
his
or
her
medically
determinable
impairment(s).
RFC is the maximum degree to which
the individual retains the capacity for sustained
performance of the physical-mental requirements of
jobs.
Id.
In his decision, the ALJ stated that,
[a]fter careful consideration of the entire record,
[he
found]
that
[Appellant]
has
the
residual
functional capacity to perform a full range of light
work as defined in 20 C.F.R. 404.1567(b)[,] except
she should [have] no greater than moderate exposure
to hazards such as machinery and heights.
She is
limited to occasionally climbing ramps, stairs,
19

the

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ladders, ropes and scaffolds.
She can occasionally
balance, stoop, kneel, crouch and crawl.
She is
capable
of
understanding,
carrying
out
and
remembering simple instructions in an unskilled
position, with no greater than occasional contact of
the general public.
J.A. 9
“[W]hether a person is disabled by pain or other symptoms
is a two-step process.

First, there must be objective medical

evidence showing the existence of a medical impairment(s) which
results

from

anatomical,

physiological,

or

psychological

abnormalities and which could reasonably be expected to produce
the pain or other symptoms alleged.”

Craig, 76 F.3d at 594

(citations omitted) (emphasis omitted).

“At this stage of the

inquiry, the pain claimed is not directly at issue; the focus is
instead on establishing a determinable underlying impairment—a
statutory

requirement

for

entitlement

to

benefits—which

could

reasonably be expected to be the cause of the disabling pain
asserted by the claimant.”
is

complete,

the

ALJ

Id.

Second, after the first inquiry

must

evaluate

“the

intensity

and

persistence of the claimant’s pain, and the extent to which it
affects her ability to work[.]”

Id. at 585.

“This evaluation

must take into account not only the claimant’s statements about
her pain, but also ‘all the available evidence,’ including the
claimant’s
findings,

medical
any

history,

objective

medical

medical

20

signs,

evidence

of

and
pain

laboratory
(such

as

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evidence of reduced joint motion, muscle spasms, deteriorating
tissues, redness, etc.).”
account “any

other

Id.

evidence

The ALJ must also take into

relevant

to

the

severity

of

the

impairment, such as evidence of the claimant’s daily activities,
specific descriptions of the pain, and any medical treatment
taken to alleviate it[.]”

Id.

“[T]here must be . . . a medical impairment . . . which,
when

considered

statements

of

with
the

all

the

individual

evidence
or

his

.

.

.

physician

(including
as

to

the

intensity and persistence of such pain or other symptoms which
may reasonably be accepted as consistent with the medical signs
and findings), would lead to a conclusion that the individual is
under a disability.”

42 U.S.C. § 423(d)(5)(A).

According to the ALJ, Appellant has the following severe
impairments:

rheumatoid

arthritis,

depression, and anxiety.

J.A. 6.

fibromyalgia,

headaches,

And, the ALJ found that

Appellant’s “medically determinable impairments could reasonably
be

expected

to

cause

the

alleged

symptoms;

however,

[Appellant’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the
extent

that

they

are

inconsistent

functional capacity assessment.”
above,

the

ALJ

avowed

that

with

J.A. 10.

“[Appellant]

the

. .

.

residual

Further, as stated
has

not

generally

received the type of medical treatment one would expect for a
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totally disabled individual.
treatment

for

treatment
nature.”

has

the
been

Pg: 22 of 30

Although [Appellant] has received

allegedly

disabling

essentially

routine

impairments,
and

that

conservative

in

J.A. 17.

In response to the ALJ’s holding regarding the routine and
conservative nature of Appellant’s treatment, Appellant argues
that “[t]he characterization of [Appellant’s] psychiatric care
as ‘routine and conservative’ is an incorrect legal standard of
evaluation of credibility where the term is undefined in the
regulations

and

record.

beliefs

any

given

of

(emphasis omitted).

The

term

decision

is

idiosyncratic

maker.”

Appellant’s

to
Br.

the
26

We disagree.

First, according to 20 C.F.R. § 404.1529(c)(3)(iv)-(v), in
determining

if

someone

is

disabled,

it

is

appropriate

to

consider such things as:
(iv) The type, dosage, effectiveness, and side effects of
any medication you take or have taken to alleviate your
pain or other symptoms; [and]
(v) Treatment, other than medication, you receive or
have received for relief of your pain or other
symptoms[.]
Id.

Therefore, inasmuch as the ALJ is allowed to consider the

nature of Appellant’s treatment in determining whether she is
disabled, a reasonable mind might agree that the conservative
nature of Appellant’s treatment is an adequate basis to support

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the ALJ’s conclusion that Appellant’s testimony of her disabling
condition was incredible.

See Craig, 76 F.3d at 589.

Second, contrary to any suggestion otherwise, this Court
has long held that it is appropriate for the ALJ to consider the
conservative nature of a plaintiff’s treatment –- among other
factors -- in judging the credibility of the plaintiff.

As this

Court held in Craig, “[a]lthough a claimant’s allegations about
her pain may not be discredited solely because they are not
substantiated by objective evidence of the pain itself or its
severity,

they

inconsistent

need

with

not

the

be

accepted

available

to

evidence,

the

extent

including

they

are

objective

evidence of the underlying impairment, and the extent to which
that impairment can reasonably be expected to cause the pain the
claimant alleges she suffers[.]”

Craig, 76 F.3d at 595.

See

also Gross v. Heckler, 785 F.2d 1163, 1165-66 (4th Cir. 1986)
(finding the claimant’s claim that he was disabled not credible
when “[h]is arthritis responded to conservative treatment, and
his stomach pains were relieved by antacids.

If a symptom can

be reasonably controlled by medication or treatment, it is not
disabling.”); Shively v. Heckler, 739 F.2d 987, 990 (4th Cir.
1984) (“Claimant’s allegations that he suffered such severe pain
are not supported by x-rays or neurological findings.

He has

never been hospitalized for his back pain or other ailments. At
the

prior

supplemental

hearing,
23

claimant

indicated

that

the

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medication he was taking for pain was Extra Strength Tylenol and
Extra Strength Excedrin, both nonprescription medicines.
latest

supplemental

hearing,

claimant

testified

that

At the
he

was

taking Nalfon, which the Physician’s Desk Reference describes as
an analgesia for treatment of mild to moderate pain, prescribed
for

relief

from

acute

osteoarthritis.

The

flairs

ALJ

of

observed

rheumatoid
that

arthritis

stronger

and

medications

could have been prescribed.”).
Third,
treatment
determining

in
as

allowing

one

a

of

the

the

claimant’s

conservative

factors

a

credibility,

nature

court
we

may

are

of

one’s

consider

in

accord

several other courts of appeals that have held the same.

in

with
See,

e.g., Smith v. Colvin, 756 F.3d 621, 626 (8th Cir. 2014) (noting
with

approval

that

the

ALJ’s

credibility

determination

was

based, in part, on finding that the plaintiff’s treatment was
“essentially routine and/or conservative in nature”) (internal
quotation marks omitted); Wall v. Astrue, 561 F.3d 1048, 1068–69
(10th Cir. 2009) (holding that a history of conservative medical
treatment undermines allegations of disabling symptoms); Parra
v.

Astrue,

481

F.3d

742,

751

(9th

Cir.

2007)

(stating

that

evidence of conservative treatment permits the ALJ to discount
the

claimant’s

testimony

regarding

the

severity

of

an

impairment); Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th
Cir. 2005) (noting with approval the ALJ’s consideration of the
24

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nature

of

Filed: 06/01/2015

plaintiff’s

conservative”

in

Pg: 25 of 30

treatment

making

his

as

having

credibility

been

“routine

decision)

and

(internal

quotation marks omitted); Knepp v. Apfel, 204 F.3d 78, 83 (3d
Cir. 2000) (same); Wolfe v. Chater, 86 F.3d 1072, 1078 (11th
Cir.

1996)

(holding

that

a

physician’s

conservative

medical

treatment for a particular condition tends to negate a claim of
disability).
Fourth, and finally, as to Appellant’s argument that “[t]he
term [conservative treatment] is idiosyncratic to the beliefs of
any

given

substantial
choice

decision
evidence

within

which

maker[,]”
standard
the

Appellant’s
‘presupposes

decisionmakers

without interference by the courts.

.

can

Br.
.
go

.

26,
a

“the

zone

either

of

way,

An administrative decision

is not subject to reversal merely because substantial evidence
would have supported an opposite decision.’”

Clarke, 843 F.2d

at 272-73.
In reviewing Appellant’s arguments, it appears that she may
be missing the reason as to why it is proper for the ALJ to
consider the conservative treatment of a claimant in making a
credibility decision.

It is as simple as this:

if all that the

claimant needs is conservative treatment, it is reasonable for
an ALJ to find that the alleged disability is not as bad as the
claimant says that it is.

Put another way, when a claimant

complains that her alleged disability is so bad that she is
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unable to work in any job whatsoever, but the ALJ finds that the
treatment was not as aggressive as one would reasonably think
would be employed if the alleged disability were actually that
severe, then it is reasonable for the ALJ to conclude that the
conservative treatment bears on the claimant’s credibility.
Of

course,

there

may

be

any

number

of

reasons

for

a

physician to prescribe a “conservative” course of treatment, and
it

is

for

that

necessarily

render

benefits.
which

is

the

any

treatment

other reasons.
that

that

a

such

alone

ineligible

claimant

treatment

for

would

not

disability

But we are not presented here with a situation in

there

aggressive

reason

suggestion
yet

that

received

Appellant

conservative

required
treatment

more
for

From the record as detailed herein, it appears

conservative

nature

of

Appellant’s

treatment

sufficient to prevent her from being totally disabled.

was

Because

it is well established in this circuit that the ALJ can consider
the conservative nature of a claimant’s treatment in making a
credibility

determination,

we

hold

that

there

is

substantial

evidence in the record to support the ALJ’s decision to take the
conservative nature of Appellant’s treatment into consideration
in finding her claim of total disability incredible.

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2.
Next, Appellant maintains that her “alleged non-compliance
with prescribed medication regimens is an improper factor for
evaluation of credibility in the absence of any connection to
[Appellant’s] credibility such as [Appellant] did not need the
medication,
produce

was

failing

disability

compliance.”

or

to

take

was

the

medication

attempting

Appellant’s Br. 30.

to

in

hide

order
the

to

non-

We disagree.

Under 20 C.F.R. § 404.1530,
to get benefits, you must follow treatment prescribed
by your physician if this treatment can restore your
ability to work . . . .
If you do not follow the
prescribed treatment without a good reason, we will
not find you disabled or, if you are already
receiving benefits, we will stop paying you benefits.
. . .
We will consider your physical, mental,
educational, and linguistic limitations (including
any lack of facility with the English language) when
determining if you have an acceptable reason for
failure to follow prescribed treatment.
As the ALJ noted in his decision, according to Appellant’s
medical records, she had been non-compliant with her recommended
treatment.
“[t]reatment
with

J.A.

17.

notes

from

medication,

where

According
Dr.

Swing

to

the

indicate

[Appellant]

had

ALJ’s

decision,

compliance
failed

to

issues
start

medications as prescribed, or had self-discontinued medications.
Treatment notes from [Appellant’s] primary care physician, as
recent as November 2010, also show [Appellant] having compliant
issues [and] self-discontinuing medications.”
27

Id.

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Specifically, we note that, although Dr. Swing had earlier
prescribed

Abilify,

during

Appellant’s

November

19,

2007,

appointment, Appellant confessed that she had not yet started
taking the medication because she was “afraid of weight gain.”
A.R. 677.

On October 20, 2008, Appellant told her doctor that

she was not taking her medications as prescribed because she
could not afford them.

Id. at 978.

Although noncompliance

indicates a lack of credibility only where “there are no good
reasons” for failing to follow treatment, SSR 96-7p, 1996 WL
374186 (July 2, 1996), there is nothing in the record as to
whether

Appellant

made

any

attempt

to

obtain

assistance

in

purchasing her prescription medications.
In

Dr.

Swing’s

notes

from

Appellant’s

May

14,

2009,

appointment, id. at 975, he noted that she had failed to begin
taking

Wellbutrin,

appointment,

as

directed

id. at 976.

during

her

April

21,

2009,

During Appellant’s November 4, 2010,

appointment with Dr. Dana B. Brown, Appellant informed Dr. Brown
that she had, on her own, discontinued taking Wellbutrin, id. at
1074, since her last visit on October 18, 2010.

Although Dr.

Brown had previously “started her on Provigil, . . . she was
afraid of the medicines and never did start it.”

Id.

Appellant argues in her brief that she “never engaged in
behavior which reflects poorly on her credibility when it comes
to taking medications.”

Appellant’s Br. 39.
28

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record, the ALJ was free to conclude otherwise.

That is, the

ALJ could reasonably have determined that the severe symptoms
Appellant described were inconsistent with her failure to fully
comply

with

the

treatment

her

physicians

prescribed.

Cf.,

Johnson, 434 F.3d at 658 (failure to seek care of a medical
specialist

undermined

the

credibility

of

claimant’s

about her subjective assessments of her pain).

testimony

And we may not

“re-weigh conflicting evidence, make credibility determinations,
or substitute our judgment for that of the” ALJ.

Craig, 76 F.3d

at 589.
In

any

event,

the

ALJ

did

not

deny

Appellant

benefits

solely because of the evidence of her non-compliance.

Rather,

Appellant’s non-compliance was merely one of a number of factors
the

ALJ

considered

in

determining

that

Appellant’s

about her symptoms was only partially credible.

testimony

Because the

ALJ’s determination is supported by substantial record evidence,
we cannot disturb it.

IV.
Certainly,

the

ALJ

could

have

done

a

better

job

in

explaining the bases for finding that Appellant is not disabled
under the Act.

But, the fact that the ALJ could have offered a

more thorough explanation for his decision does not change our
conclusion that substantial evidence in the record supports that
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We hold that “the ALJ’s factual findings . . . are

supported by substantial evidence and [were] reached by applying
the correct legal standard.”

Hancock, 667 F.3d at 472.

V.
For these reasons, we affirm the judgment of the district
court.
AFFIRMED

30