Filed: Jun. 01, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1565 LISA DUNN, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, 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
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-1565 LISA DUNN, Plaintiff - Appellant, v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, 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 t..
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UNPUBLISHED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, Acting Commissioner, Social Security
Administration,
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Affirmed by unpublished opinion.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.
Unpublished opinions are not binding precedent in this circuit.
2
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. She alleged that she became
disabled on May 1, 2007, based on rheumatoid arthritis,
fibromyalgia, headaches, depression, and anxiety. 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 judge for a Report and
Recommendation (Report). In the magistrate judge’s Report, he
suggested that the district court grant Appellee’s motion for
summary judgment and deny Appellant’s motion for summary
judgment. Appellant filed objections to the Report. The
district court overruled the objections, adopted the Report,
granted Appellee’s motion for summary judgment, denied
Appellant’s motion for summary judgment, and affirmed Appellee’s
final decision denying Appellant’s claim for DIB.
3
Appellant then timely filed her notice of appeal with this
Court. We have jurisdiction to consider her appeal under
42 U.S.C. § 405(g) and 28 U.S.C. § 1291. 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 the Social Security Act, § 205(g), 42 U.S.C.
§ 405(g). See Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.
1995). 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. Hancock v. Astrue,
667 F.3d 470, 472
(4th Cir. 2012). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Craig v. Chater,
76 F.3d 585, 589 (4th
Cir. 1996) (internal citations omitted) (quotation marks
omitted). It “consists of more than a mere 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
4
evidence, make credibility determinations, or substitute our
judgment for that of the [ALJ].” Johnson v. Barnhart, 434 F.3d
650, 653 (4th Cir. 2005) (internal citations and quotation marks
omitted). “Where conflicting evidence allows reasonable minds
to differ as to whether a claimant . . . is disabled, the
responsibility for that decision falls on [the ALJ].”
Craig, 76
F.3d at 589. “[T]he substantial evidence standard ‘presupposes
. . . a zone of choice within which the decisionmakers can go
either way, without interference by the courts. An
administrative decision is not subject to reversal 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, it is beyond dispute that it is not the
province of the courts to resolve factual matters in Social
Security cases such as this de novo. “At the same time, they
must not abdicate their traditional functions; they cannot
escape their duty to scrutinize ‘the record as a whole’ to
determine whether the conclusions reached are rational.” Thomas
v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964) (quoting
Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474, 490 (1951)).
5
II.
The Social Security Administration has established a five-
step 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
6
several medically determinable severe impairments, (3)
Appellant’s severe impairments do not meet or 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 consideration of the conservative nature of
Appellant’s treatment and her non-compliance with taking her
medications as prescribed. 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, and her treating psychiatric counselor, Betty
Gosnell. We are unconvinced.
7
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 generally will not be disturbed absent some
indication that the ALJ has dredged up “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
8
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 disability are
reserved for the ALJ and for the ALJ alone. See 20 C.F.R. §
404.1527(e)(1) (1998). Generally, the more the medical source
presents relevant evidence to support his opinion, and the
better that he explains it, the more weight his opinion is
given. 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 March 7, 2007, “due to worsening depression and
anxiety.” J.A. 10. ∗ “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.
9
mood and congruent affect.” Id. “On April 4, 2007, she
reported her medications were causing her to be jittery. She
noted to continue to be anxious.”
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. She was noted to be fairly
stable.”
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. She was noted to be improving.”
Id. Appellant saw Dr. Swing again on March 3, 2008. “She
reported anxiety due to her recent medical course, and was
10
striving for answers.” Id. at 12. During Appellant’s March 31,
2008, appointment with Dr. Swing, she “reported having tremors
from the medications. She was anxious.”
Id.
During Appellant’s June 10, 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.”
Id. Appellant saw Dr. Swing on October 20,
2008.
Id. At that time, she “reported to Dr. Swing that she
felt that she was doing okay. She reported some increased
anxiety, and was taking extra Xanax during the day.”
Id.
Appellant returned to Dr. Swing on January 22, 2009.
Id.
at 14. “She was quiet and calm. She reported that she was not
taking her full dosage of medication because she could not
afford it, but believed she needed it. She was stable, with no
suicidal or homicidal ideation.”
Id. at 14. During Appellant’s
appointment on April 16, 2009, “[s]he had no suicidal or
homicidal ideation.
Id. During Appellant’s April 21, 2009,
appointment, “she complained [of] depression and increased
crying.”
Id. Appellant reported on May 14, 2009, that “she had
not started a prescribed medication. There was no suicidal or
homicidal ideation.”
Id. And then “[o]n June 18, 2009, she was
mostly calm, but was slight[ly] anxious at times.”
Id.
11
According to the ALJ, 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 list of twenty of Appellant’s work-related
abilities. A.R. 893-94; see also J.A. 18. “Severe indicates
that the activity is totally precluded on a sustained basis and
would result in failing after even short duration: 5-10
minutes.” A.R. 893. Dr. Swing marked as severe the following
work-related limitations: needing “special supervision,”
“work[ing] in coordination with or [in] proximity to others
without being distracted,” “mak[ing] simple work related
decisions,” “complet[ing] a normal workday and work week without
interruptions from psychologically based symptoms and . . .
12
perform[ing] at a consistent pace without an unreasonable number
and length of rests,” “interact[ing] appropriately with the
general public or customers,” “accept[ing] instructions and
responding appropriately to criticism 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 cleanliness,” “respond[ing] appropriately to
expected changes in the work setting,” “set[ting] realistic
goals or mak[ing] plans independently,” and “travel[ing] in
unfamiliar settings and us[ing] public transportation.” A.R.
893-94. However, the ALJ was permitted to afford these opinions
limited weight, to the extent that they are controverted by
other medical evidence in the record. 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]
13
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. A.R. 907.
Dr. Merrion found Appellant “capable of doing 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 coworkers or the public would tend to render her less
14
efficient. . . . [Appellant] has a mildly to moderately
impaired ability to deal with the normal stressors and demands
encountered in competitive employment.” Id.
Dr. Francis, the last 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 the general public,
involving simple, unskilled work tasks.” J.A. 18. 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 Dr. Francis “significant weight because [it was]
consistent with objective findings made upon examination of
[Appellant].” J.A. 18. Further, the ALJ “assigned limited
weight to the opinions of Dr. Swing and Ms. Gosnell,
[Appellant’s] treating psychiatric sources, as they are
inconsistent with their treatment notes contained throughout
[Appellant’s] medical records.” Id. 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
15
one occasion.” Id. 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. Hancock, 667
F.3d at 472. 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 Appellant’s October 5, 2007, appointment with
Gosnell, she stated that she was “feeling better and more
16
energized.” 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.”
Id.
And, then on June 23, 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.”
Id. Gosnell also
noted that Appellant “reports that that helps quite a bit.
Relationship is going okay right now although she struggles with
his parents and his relationship with his mother.”
Id.
17
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. We hold that the ALJ’s decision to accord limited
weight to 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 non-
compliance 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] self-
discontinuing 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
18
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 five-
step sequential evaluation, the ALJ must determine the
plaintiff’s Residual Functional Capacity (RFC). 20 C.F.R.
§§ 416.920(e)-(f), 416.945(a)(1). 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
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.”
Id. Second, after the first inquiry
is complete, the ALJ 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 medical history, medical signs, and laboratory
findings, any objective medical evidence of pain (such as
20
evidence of reduced joint motion, muscle spasms, deteriorating
tissues, redness, etc.).” Id. The ALJ must also take into
account “any other evidence 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 with all the evidence . . . (including
statements of the individual or his physician 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, fibromyalgia, headaches,
depression, and anxiety. J.A. 6. 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 with the . . . residual
functional capacity assessment.” J.A. 10. Further, as stated
above, the ALJ avowed that “[Appellant] has not generally
received the type of medical treatment one would expect for a
21
totally disabled individual. Although [Appellant] has received
treatment for the allegedly disabling impairments, that
treatment has been essentially routine and conservative in
nature.” 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. The term is idiosyncratic to the
beliefs of any given decision maker.” Appellant’s Br. 26
(emphasis omitted). 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
22
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 need not be accepted to the extent they are
inconsistent with the available evidence, including 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, claimant indicated that the
23
medication he was taking for pain was Extra Strength Tylenol and
Extra Strength Excedrin, both nonprescription medicines. At the
latest supplemental hearing, claimant testified that 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 flairs of rheumatoid arthritis and
osteoarthritis. The ALJ observed that stronger medications
could have been prescribed.”).
Third, in allowing the conservative nature of one’s
treatment as one of the factors a court may consider in
determining a claimant’s credibility, we are in accord with
several other courts of appeals that have held the same. 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
nature of plaintiff’s treatment as having been “routine and
conservative” in making his credibility decision) (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 decision maker[,]” Appellant’s Br. 26, “the
substantial evidence standard ‘presupposes . . . a zone of
choice within which the decisionmakers can go either way,
without interference by the courts. 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
25
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 reason that such treatment alone would not
necessarily render a claimant ineligible for disability
benefits. But we are not presented here with a situation in
which there is any suggestion that Appellant required more
aggressive treatment yet received conservative treatment for
other reasons. From the record as detailed herein, it appears
that the conservative nature of Appellant’s treatment was
sufficient to prevent her from being totally disabled. 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.
26
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, was failing to take the medication in order to
produce disability or was attempting to hide the non-
compliance.” Appellant’s Br. 30. 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. J.A. 17. According to the ALJ’s decision,
“[t]reatment notes from Dr. Swing indicate compliance issues
with medication, 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 compliant
issues [and] self-discontinuing medications.” Id.
27
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, as directed during her April 21, 2009,
appointment,
id. at 976. 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. But based on this
28
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 testimony
about her subjective assessments of her pain). 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 testimony
about her symptoms was only partially credible. 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
29
decision. 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
