UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1272

MADELINE BROWN TANNER,

Plaintiff - Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Joseph F. Anderson, Jr., Senior 

District Judge. (2:12-cv-03001-JFA)

Submitted: January 29, 2015 Decided: February 12, 2015

Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

John B. Duggan and Daniel R. Hughes, Duggan & Hughes, LLC, 

Greer, South Carolina, for Appellant. Marshall Prince, 

Assistant United States Attorney, Columbia, South Carolina, and 

Marcelo N. Illarmo, Special Assistant United States Attorney, 

Boston, Massachusetts, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

The Social Security Administration twice denied Madeline

Tanner’s claim for disability insurance benefits. After each 

denial, Ms. Tanner sought review of the Commissioner’s decision 

by filing suit in the United States District Court for the 

District of South Carolina. The district court upheld the 

agency’s second denial of benefits. Ms. Tanner appeals the 

district court’s judgment, arguing that the court improperly 

applied the “mandate rule” to preclude consideration of two of 

her challenges to the administrative law judge’s findings. 

Although the district court’s application of the mandate rule 

was erroneous, we nevertheless affirm.

I.

On October 17, 2005, Ms. Tanner, then a special education 

teacher, intervened in a fight between two students. During the 

fight, Ms. Tanner sustained injuries to her left upper 

extremity, left shoulder, and the left side of her neck. She 

commenced medical treatment in 2006 for a variety of mental and 

physical complaints, including chronic pain, numbness of the 

extremities, PTSD, anxiety, and depression. 

Ms. Tanner applied for disability insurance benefits in 

December 2007. Her claim was denied initially, upon 

reconsideration, and after a hearing before an administrative 

law judge. Ms. Tanner filed suit against the Commissioner in 
3

federal district court, arguing that the ALJ (1) failed to 

consider the opinions of her treating physicians; (2) failed to 

properly assess her credibility; and (3) failed to consider the 

effects of her impairments in combination. The magistrate 

judge, to whom Ms. Tanner’s case was referred, recommended 

remand for additional consideration of opinion evidence, but 

rejected all of her other arguments. The district court 

accepted the magistrate judge’s recommendation and vacated the 

Commissioner’s decision denying Ms. Tanner disability benefits.

Upon remand, the agency held a second hearing before a 

different administrative law judge. Yet again, the ALJ denied 

Ms. Tanner’s claim for disability insurance benefits. Ms. 

Tanner filed suit in district court, asserting arguments nearly 

identical to those raised in her first suit against the 

Commissioner. This time, however, the magistrate judge 

recommended that the district court uphold the Commissioner’s 

denial of benefits. 

The magistrate judge declined to consider Ms. Tanner’s 

challenges regarding the effects of her impairments in 

combination and the ALJ’s adverse credibility determination. 

The magistrate judge reasoned that those arguments had already 

been rejected and were “secondary to [Ms. Tanner’s] main concern 

about evaluation of medical source opinions.” The magistrate 

judge concluded that the previous determinations constituted 
4

“the law of the case” and declined to depart from them. The 

district court agreed with the magistrate judge’s assessment of 

the issues and incorporated the recommendation into its decision 

upholding the denial of benefits. Ms. Tanner timely appealed 

the district court’s decision. 

II.

Before us, the parties agree that the district court’s 

application of the mandate rule was erroneous. Ms. Tanner 

argues that the error can only be cured by a reversal of the 

district court’s order and a remand of her case to the agency. 

The Commissioner contends that the error is harmless. We agree 

with the Commissioner. 

“The mandate rule prohibits lower courts, with limited 

exceptions, from considering questions that the mandate of a 

higher court has laid to rest.” Doe v. Chao, 511 F.3d 461, 465 

(4th Cir. 2007). An interest in finality also undergirds the 

law of the case doctrine. “[W]hen a decision of an appellate 

court establishes ‘the law of the case,’ it ‘must be followed in 

all subsequent proceedings in the same case in the trial court 

or on a later appeal . . . unless: (1) a subsequent trial 

produces substantially different evidence, (2) controlling 

authority has since made a contrary decision of law applicable 

to the issue, or (3) the prior decision was clearly erroneous 

and would work manifest injustice.’” Sejman v. Warner-Lambert 
5

Co. Inc., 845 F.2d 66, 69 (4th Cir. 1988) (quoting EEOC v. Int’l 

Longshoremen's Ass’n, 623 F.2d 1054 (5th Cir. 1980)). 

The mandate rule is “a specific application of the law of 

the case doctrine.” United States v. Bell, 5 F.3d 64, 66 (4th 

Cir. 1993) (internal citation and quotation marks omitted). We

have stated in dicta that it “applies with equal authority to . 

. . administrative agencies.” Scott v. Mason Coal Co., 289 F.3d 

263, 267 (4th Cir. 2002). We presume without deciding that the 

Social Security Administration is an agency to which the mandate 

rule applies. 

The magistrate judge (and by extension, the district court)

invoked the mandate rule in order to avoid reviewing the

arguments that it believed the court had previously resolved in 

Ms. Tanner’s first suit against the Commissioner. The “mandate” 

purportedly binding the Social Security Administration was that 

on remand, it was to reconsider only certain opinion evidence in 

Ms. Tanner’s record. We do not view the second ALJ’s decision 

as running afoul of the mandate rule, and in any event, we have 

the authority to review all of Ms. Tanner’s challenges to the 

ALJ’s decision in our review for substantial evidence. 

Upon remand of Ms. Tanner’s case to the agency, the first 

ALJ’s decision was vacated and a different ALJ presided over Ms. 

Tanner’s second hearing. At the second hearing, the ALJ 

received additional medical evidence totaling more than 100 
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pages and heard new testimony from Ms. Tanner and a vocational 

expert. Given the inclusion of this additional evidence, the 

ALJ was obliged by agency regulations to reassess Ms. Tanner’s 

disability claim de novo through the date of the new decision.* 

See 20 C.F.R. § 404.1520(a)(3) (stating that the agency’s fivestep sequential evaluation process requires that it consider 

“all evidence in [a claimant’s] case record” when making a 

disability determination). Therefore, the ALJ’s findings 

regarding credibility and the combined effects of Ms. Tanner’s 

impairments were based, in part, on new evidence, and as a 

result, could not run afoul of the mandate set forth by the 

district court. 

As we explain below, even if the district court had 

considered all of Ms. Tanner’s arguments against the ALJ’s 

decision, reversal would not have been appropriate. 

III.

“When examining an SSA disability determination, a 

reviewing court is required to uphold the determination when an 

ALJ has applied correct legal standards and the ALJ’s factual 

 * The Social Security Administration’s Hearings, Appeals, 

and Litigation Law Manual “HALLEX” notes that the Appeals 

Council will vacate the entire prior decision of an 

administrative law judge upon a court remand, and that the ALJ 

must consider de novo all pertinent issues. HALLEX I-2-8-18, 

Administrative Law Judge Decisions in Court Remand Cases.
7

findings are supported by substantial evidence.” Bird v. Comm’r 

of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). 

“Substantial evidence is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Johnson 

v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). “In reviewing 

for substantial evidence, we do not undertake to re-weigh 

conflicting evidence, make credibility determinations, or 

substitute our judgment for that of the Secretary.” Craig v. 

Chater, 76 F.3d 585, 589 (4th Cir. 1996). Significantly, a

district court and an appellate court apply the same standard of 

review when considering a claimant’s appeal from a denial of 

social security benefits. 

To that end, we affirm the district court because our 

independent assessment of all of Ms. Tanner’s challenges 

demonstrates that the ALJ’s decision is supported by substantial 

evidence. 

A.

We begin with Ms. Tanner’s challenge to the ALJ’s adverse 

credibility determination. This Circuit has developed, in 

accordance with SSA regulations, a two-step process for 

evaluating a claimant’s subjective complaints of pain. First, 

there must be “a showing by objective evidence of the existence 

of a medical impairment which could reasonably be expected to 

produce the actual pain, in the amount and degree, alleged by 
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the claimant.” Craig, 76 F.3d at 594 (internal quotation marks 

omitted). 

If the claimant meets this threshold obligation, the ALJ 

must next evaluate the “intensity and persistence of the 

claimant’s pain, and the extent to which it affects her ability 

to work.” Id. at 595. The evaluation takes into account all 

available evidence, including “the claimant’s medical history, 

medical signs, laboratory findings, . . . evidence of the 

claimant’s daily activities, specific descriptions of the pain, 

and any medical treatment taken to alleviate it.” Id. The 

claimant’s allegations regarding the severity and persistence of 

pain cannot be dismissed solely because objective evidence of 

pain is lacking; at the same time, however, the claimant’s 

allegations “need not be accepted to the extent they are 

inconsistent with the available evidence.” Id.

Substantial evidence supports the ALJ’s adverse credibility 

determination. The ALJ concluded that Ms. Tanner’s medically 

determinable impairments could reasonably be expected to cause 

the symptoms alleged, but he discounted the extent of her

subjective complaints because they were inconsistent with the

medical evidence. The ALJ noted that Ms. Tanner’s self-reported 

activities of daily living varied dramatically. At times, she 

reported being able to participate in physical activities such 

as babysitting and household chores, and at other times, she 
9

reported being unable to engage in previous hobbies. With 

respect to her physical symptoms, the ALJ highlighted other 

inconsistencies, all of which are supported by the medical

evidence of record, including complaints of numbness during some 

visits to doctors and no numbness at others. Furthermore, 

despite her persistent complaints of pain, Ms. Tanner has 

responded relatively well to medication. 

B.

Ms. Tanner’s argument that the ALJ failed to consider the 

effects of her medically determinable impairments in combination 

is without merit. “To be sure, an ALJ must ‘adequately explain 

his or her evaluation of the combined effects of [a claimant’s] 

impairments.’” Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 

(4th Cir. 2014) (quoting Walker v. Bowen, 889 F.2d 47, 50 (4th 

Cir. 1989)). 

The ALJ did just that. He first described Ms. Tanner’s 

non-severe impairments and noted that her obesity “combined with 

her musculoskeletal impairments does not result in impairments 

that meet or equal listing severity.” (emphasis added). The 

ALJ then described Ms. Tanner’s severe impairments and 

concluded that, “[t]he claimant does not have an impairment or 

combination of impairments that meets or medically equals the 

severity of one of the listed impairments.” It is thus clear 

from the opinion that the ALJ expressly considered Ms. Tanner’s 
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impairments in combination. Moreover, because Ms. Tanner made 

the threshold showing of severe impairments, the ALJ was 

required to continue the sequential evaluation and consider all 

of her impairments, both severe and non-severe, that 

significantly affect her ability to work. See 20 C.F.R. § 

404.1523 (“[W]e will consider the combined effect of all of [a 

claimant’s] impairments without regard to whether any such 

impairment, if considered separately, would be of sufficient 

severity.”). Accordingly, Ms. Tanner’s argument fails. 

C.

Ms. Tanner argues that the ALJ erred when he failed to 

accord the opinions of her treating medical providers great 

weight. She asserts that the ALJ cherry picked medical evidence 

to support his finding of non-disability. Given the several 

years that medical records often span, it is inevitable that 

some evidence will show signs of a claimant’s improvement and 

other evidence will show signs of a claimant’s regression. 

“Where conflicting evidence allows reasonable minds to differ as 

to whether a claimant is disabled, the responsibility for that 

decision falls on . . . the ALJ.” (internal quotation marks and 

citation omitted). Craig, 76 F.3d at 589. 

Our review of the ALJ’s opinion, and of the medical record, 

demonstrates that the ALJ failed to expressly assign weight to a 

physical Medical Source Statement completed by Dr. LeBlond in 
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January 2012. However, this error is harmless because it is 

clear from the ALJ’s RFC assessment that he accepted most of Dr. 

LeBlond’s findings. The ALJ’s treatment of the other opinion 

evidence from Drs. LeBlond, Holdren, Freeman, and Page, and Ms. 

Williams, is supported by substantial evidence. Accordingly, 

our discussion here is limited to an evaluation of Dr. LeBlond’s 

Medical Source Statement. 

In the Medical Source Statement, Dr. LeBlond opined that 

Ms. Tanner can occasionally lift and/or carry less than 10 

pounds in an eight-hour work day, occasionally climb, balance,

stoop, crouch, and kneel, and never crawl. It further provides 

that Ms. Tanner can reach infrequently, sit in a hard chair for 

10-15 minutes before needing to stand, and has difficulty 

writing due to left wrist dominance. Dr. LeBlond noted that his 

opinion was based primarily on Ms. Tanner’s subjective 

complaints, with support from some physical findings. The ALJ 

never expressly discussed or assigned weight to the Medical 

Source Statement.

An ALJ is required to assign weight to every medical 

opinion in a claimant’s record. 20 C.F.R. §§ 404.1527(c)

(“Regardless of its source, we will evaluate every medical 

opinion we receive.”) & 404.1527(c)(2) (“We will always give 

good reasons in our notice of determination or decision for the 

weight we give your treating source’s opinion.”). Failure to 
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assign weight to a treating physician’s opinion can result in a 

reversal. See Gordon v. Schweiker, 725 F.2d 231, 235 (4th Cir. 

1984) (remanding for agency’s failure to indicate the weight 

given to various medical reports in the record and stating, 

“[w]e cannot determine if findings are unsupported by 

substantial evidence unless the Secretary explicitly indicates 

the weight given to all of the relevant evidence.”) 

Reversal is not warranted here, in spite of the ALJ's 

error, for several reasons. First, the ALJ’s RFC assessment 

reflects the credible recommendations provided in Dr. LeBlond’s 

Medical Source Statement. The ALJ credited the limitation to 

light or sedentary work, which requires lifting no more than 20 

pounds, or no more than 10 pounds, respectively. See 20 C.F.R. 

§ 404.1567. The ALJ also credited the limitation to occasional 

kneeling, crouching, crawling; no climbing of ladders, ropes, or 

scaffolds; and no concentrated exposure to pulmonary irritants. 

Second, in the ALJ’s discussion of the assessments completed by 

state agency consultants, he noted that their conclusions were 

consistent with medical evidence submitted since the 

reconsideration determination. This evidence would include Dr. 

LeBlond’s 2012 Medical Source Statement, which suggests that, at 

the very least, the ALJ considered Dr. LeBlond’s opinion in 

weighing all of the evidence. Finally, reversing the ALJ’s 

decision solely because he failed to assign weight to Dr. 
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LeBlond’s opinion would be pointless. As noted above, the RFC 

assessment and Dr. LeBlond’s opinion are largely consistent, and 

it is highly unlikely, given the medical evidence of record,

that a remand to the agency would change the Commissioner’s 

finding of non-disability. 

D.

Ms. Tanner attacks the ALJ’s decision to accord more weight 

to the opinions of non-treating, non-examining state agency 

consultants than to the opinions of her treating physicians. A 

“non-examining physician’s opinion cannot, by itself, serve as 

substantial evidence supporting a denial of disability benefits 

when it is contradicted by all of the other evidence in the 

record.” Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)

(emphasis in original). However, “the testimony of a nonexamining physician can be relied upon when it is consistent 

with the record.” Id. 

Here, while the ALJ assigned “great weight” to the opinions 

of consultants who never examined or treated Ms. Tanner, he did 

so because their opinions were supported by the medical evidence 

as a whole. Ms. Tanner also contends that the state agency 

consultants rendered conclusory opinions before important 

medical evidence was introduced. We disagree with Ms. Tanner’s 

characterization of the state agency consultants’ opinions. 

Each opinion included notes with references to specific evidence 
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from the record that supported the consultant’s findings. 

Second, while the state agency consultants did not have the 

benefit of a full record, the ALJ did, and he made clear that 

their findings were consistent with the evidence of record, 

including evidence submitted since the date of reconsideration.

E.

For the first time on appeal, Ms. Tanner argues that the 

agency did not meet its burden of proof regarding her ability to 

perform alternative work, because the vocational expert 

concluded that, given her functional limitations, there were no 

jobs that she could perform. In so contending, however, Ms. 

Tanner overlooks the circumstance that the vocational expert 

only reached that conclusion upon questioning from her counsel, 

and that her counsel posed hypothetical questions that included 

severe functional limitations not supported by the medical 

evidence. Indeed, when the ALJ posed hypotheticals to the VE 

that set out all of Ms. Tanner’s credible limitations, the VE 

responded that Ms. Tanner could perform the jobs of packer, 

assembler, marker pricer, sorter, and inspector. 

IV.

Based on the foregoing, we conclude that substantial 

evidence supports the agency’s decision, and we affirm the 

judgment of the district court. We dispense with oral argument 

because the facts and legal contentions are adequately presented 
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in the briefing before the court and argument would not assist

our decisional process.

AFFIRMED