UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-2277

BETTY B. THOMPSON,

Plaintiff – Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security 

Administration, 

Defendant – Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Anderson. Joseph F. Anderson, Jr., District 

Judge. (8:09-cv-01968-JFA)

Submitted: July 19, 2011 Decided: August 10, 2011

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Daniel Mayes, SMITH, MASSEY, BRODIE, GUYNN & MAYES, P.A., 

Aiken, South Carolina, for Appellant. William N. Nettles, 

United States Attorney, Marvin J. Caughman, Assistant United 

States Attorney, Columbia, South Carolina; Thomas S. Inman, 

Special Assistant United States Attorney, John Jay Lee, Acting 

Regional Chief Counsel, Denver, Colorado, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Betty B. Thompson appeals the district court’s order 

affirming the Commissioner’s denial of her application for 

disability insurance benefits and supplemental security income, 

pursuant to 42 U.S.C. §§ 405(g) (2006). 

We must uphold the decision to deny benefits if the 

decision is supported by substantial evidence and the correct 

law was applied. Id.§ 405(g); Johnson v. Barnhart, 434 F.3d 

650, 653 (4th Cir. 2005) (per curiam). Substantial evidence is 

“such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Johnson, 434 F.3d at 653 

(internal quotation marks omitted). This court does not reweigh 

evidence or make credibility determinations in evaluating 

whether a decision is supported by substantial evidence; 

“[w]here conflicting evidence allows reasonable minds to 

differ,” we defer to the Commissioner’s decision. Id.

Thompson bears the burden of proving that she is 

disabled within the meaning of the Social Security Act. 

42 U.S.C. § 423(d)(5) (2006); English v. Shalala, 10 F.3d 1080, 

1082 (4th Cir. 1993). The Commissioner uses a five-step process 

to evaluate a disability claim. 20 C.F.R. §§ 404.1520(a)(4), 

416.920(a)(4) (2010). Pursuant to this process, the 

Commissioner asks, in sequence, whether the claimant: 

(1) worked during the alleged period of disability; (2) had a 
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severe impairment; (3) had an impairment that met or equaled the 

severity of a listed impairment; (4) could return to her past 

relevant work; and (5) if not, could perform any other work in 

the national economy. Id. The claimant bears the burden of 

proof at steps one through four, but the burden shifts to the 

Commissioner at step five. See Bowen v. Yuckert, 482 U.S. 137, 

146 n.5 (1987). If a decision regarding disability can be made 

at any step of the process, however, the inquiry ceases. See 20 

C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

First, Thompson asserts that the administrative law 

judge (“ALJ”) erred in finding she could perform past relevant 

work. Second, Thompson contends that, without justification, 

the ALJ failed to give controlling weight to the opinion of a 

treating physician. Third, she argues that the ALJ failed to 

properly analyze her credibility. We find no reversible error 

and, for the reasons that follow, we affirm.

I.

The issue at step four of the five-step process is 

whether the claimant can perform her past relevant work; the 

claimant bears the burden of establishing that she cannot. 

Yuckert, 482 U.S. at 146 n.5. Thompson contends that the ALJ 

committed numerous errors in determining that she could perform 

her past relevant work. We examine each contention in turn.
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First, Thompson asserts that the ALJ found she had 

severe mental impairments, namely depression and anxiety, and 

that these impairments limited her ability to perform basic work 

activities. She argues that the Commissioner’s decision that 

she is not disabled is not supported by substantial evidence 

because the ALJ’s questions to the vocational expert failed to 

reflect these limitations.1

We conclude that the ALJ’s hypothetical was “based 

upon a consideration of all relevant evidence of record on the 

claimant’s impairment.” English, 10 F.3d at 1085. The ALJ 

reviewed Thompson’s depression and generalized anxiety, noted 

she was successfully treated, and concluded, “[Thompson’s] 

depression and anxiety do not interfere with her ability to 

understand, carry out, and remember simple instructions, use 

judgment, respond appropriately to supervisors, co-workers, and 

usual work situations, or deal with changes in a routine work 

setting.”2

 1 “In questioning a vocational expert in a social security 

disability insurance hearing, the ALJ must propound hypothetical 

questions to the expert that are based upon a consideration of 

all relevant evidence of record on the claimant's impairment.” 

English, 10 F.3d at 1085.

2 We note and distinguish decisions of the Third Circuit in 

Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), and the 

Eleventh Circuit in Winschel v. Comm’r of Soc. Sec., 631 F.3d 

1176 (11th Cir. 2011), which found error where an ALJ’s 

hypothetical failed to set forth impairments identified at step 

(Continued)
5

Thompson also notes that although the ALJ found she 

required a sit-stand option, he failed to state how frequently 

she needed to alternate between sitting and standing. She 

argues that the ALJ’s finding was too vague for a proper 

determination of the restriction’s impact on her RFC. Thompson 

relies on Social Security Ruling (“SSR”) 96-9p, which states 

that “[t]he RFC assessment must be specific as to the frequency 

of the individual’s need to alternate sitting and standing.”

The purpose of SSR 96-9p is “[t]o explain the Social 

Security Administration’s policies regarding the impact of a[n] 

[RFC] assessment for less than a full range of sedentary work on 

an individual’s ability to do other work.” SSR 96-9p (emphasis 

added). Moreover, the ruling’s introduction explains that once 

it has been determined that a claimant is not engaging in 

substantial gainful activity (Step One), has a severe medically 

determinable impairment (Step Two), which does not meet or equal 

the criteria of a listing (Step Three) but prevents an 

 

two. The Third and Eleventh Circuits both noted that “there may 

be a valid explanation for this omission from the ALJ’s 

hypothetical,” Ramirez, 372 F.3d at 555, but such explanation 

was not supported by the record. Here, although the ALJ gave 

Thompson the benefit of thea doubt at step two, finding her 

depression and anxiety disorders were severe impairments, at 

step four the ALJ noted that Thompson had been successfully 

treated and therefore concluded that her mental residual 

functional capacity (“RFC”) was not restricted.
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individual from performing past relevant work (Step Four), “it 

must be determined whether the individual can do any other 

work.” Id. The ruling specifies how the occupational base is 

impacted when a claimant is unable to perform a full range of

sedentary work and it enumerates exertional limitations, 

including a sit-stand requirement, that can erode the 

occupational base. Id.

As the magistrate judge noted, SSR 96-9p is not 

applicable to this case. Here, the sequential evaluation 

terminated at Step Four, where Thompson had the burden of 

proving she could not perform past relevant work. The 

evaluation never proceeded to Step Five, where the Commissioner 

would have been required to prove that Thompson could “make an 

adjustment to other work.” 20 C.F.R. §§ 404.1520(a)(4)(v), 

416.920(a)(4)(v) (emphasis added); Yuckert, 482 U.S. at 146 n.5. 

Thus, the Medical-Vocational Rules, Thompson’s occupational 

base, and the impact of any exertional or nonexertional 

limitations on that base were never in issue in this case. See

SSR 83-12 (explaining how disability determination using 

Medical-Vocational Rules is based upon a claimant’s remaining 

occupational base). Thompson’s medical records did not mention 

a need to alternate between sitting and standing, much less 

according to a schedule. The ALJ’s RFC finding and hypothetical 
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were consistent with an at-will sit-stand option, and we find 

that no greater specificity was required here.

Thompson next argues that the ALJ summarily concluded 

that she could return to her past relevant work, but failed to 

make specific findings regarding the physical and mental demands 

of that work.

In determining a claimant’s ability to perform past 

relevant work, the Commissioner “may use the services of 

vocational experts or vocational specialists, or other 

resources, such as the ‘Dictionary of Occupational Titles’ and 

its companion volumes and supplements.” 20 C.F.R. 

§§ 404.1560(b)(2), 416.960(b)(2). Here, the ALJ questioned the 

vocational expert concerning the nature of Thompson’s previous 

work. Relying on the Dictionary of Occupational Titles, the 

vocational expert testified as to the skill and exertional 

levels of telemarketing positions. The ALJ compared Thompson’s 

residual functional capacity with the physical and mental 

demands required of a telemarketer and concluded that the work 

did not “require the performance of work-related activities 

precluded by [Thompson’s] residual functional capacity.” We 

therefore conclude that the ALJ made the required findings.3

 3 Thompson’s contention that the ALJ failed to explain how 

she could work as a telemarketer, a semi-skilled occupation, 

when she was restricted to simple instruction tasks rests on an 

(Continued)
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II.

Thompson next asserts that the ALJ failed to properly 

analyze the written opinion of Dr. Hughes, her treating 

physician. She argues that the opinion of Dr. Hughes, was 

entitled to controlling weight.

The Commissioner has promulgated regulations 

addressing how medical opinions are to be considered in 

disability determinations. See 20 C.F.R. §§ 404.1527, 416.927

(2010). The Commissioner evaluates every medical opinion 

received but generally determines the weight each opinions is to 

receive based on the relationship between the physician and the 

claimant. Under the “treating physician rule,” a treating 

physician’s opinion is given controlling weight if it is wellsupported by medically acceptable clinical evidence and not 

inconsistent with other substantial evidence of record. See 20 

C.F.R §§ 404.1527(d)(2), 416.927(d)(2); Mastro v. Apfel, 270 

F.3d 171, 178 (4th Cir. 2001). However, “if a physician’s 

opinion is not supported by clinical evidence or if it is 

inconsistent with other substantial evidence, it should be 

accorded significantly less weight.” Craig v. Chater, 76 F.3d 

585, 590 (4th Cir. 1996); 20 C.F.R. §§ 404.1527(d)(4), 

 

unwarranted premise. As discussed above, the ALJ did not find 

Thompson suffered from any mental restrictions.
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416.927(d)(4). “Under such circumstances, the ALJ holds the 

discretion to give less weight to the testimony of a treating 

physician in the face of persuasive contrary evidence.” Mastro, 

270 F.3d at 178.

We believe that the ALJ’s decision to afford less 

weight to Dr. Hughes’ opinion, despite his status as a treating 

physician, is supported by substantial evidence. Dr. Burrus, an 

orthopedist, noted that Thompson was neurologically intact and 

was walking better, and encouraged her to try to return to 

sedentary work. See 20 C.F.R. §§ 404.1527(d)(45), 416.927(d)(54) 

(stating Commissioner gives greater weight to opinion of a 

specialist about medical issues related to his or her area of 

specialty). Later, Dr. McQueen examined Thompson at the request 

of the Commissioner and found negative straight leg raising 

tests, no muscle weakness or sensory deficit, normal gait and 

“no true measurable orthopaedic impairment.” And sState agency 

medical consultants opined that Thompson could perform light 

work with some limitations. 

In contrast, Dr. Hughes listed Thompson’s diagnoses, 

but failed to explain how her conditions impacted her abilities. 

Rather than providing a reasoned explanation, Dr. Hughes simply 

opined in his conclusory fashion that Thompson was “permanently 

and totally disabled” and “will never be able to perform 

substantial gainful work activity.” Thus, Dr. Hughes’ letter 
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more closely resembled an opinion on a matter reserved to the 

Commissioner than a medical opinion. See 20 C.F.R. 

§§ 404.1527(e), 416.927(e) (“Opinions on some issues . . . are 

not medical opinions, . . . but are, instead, opinions on issues 

reserved to the Commissioner because they are administrative 

findings that are dispositive of a case.”). Such opinions are 

not afforded any special significance.4 See 20 C.F.R. 

§§ 404.1527(e)(3), 416.927(e)(3).

III.

Finally, Thompson contends that the ALJ failed to

adequately explain why he rejected her stated reasons for being 

unable to return to her past relevant work. She argues the ALJ 

never specifically explained why he found Thompson not credible 

at the hearing. We believe the ALJ’s credibility determination

is supported by substantial evidence.

“[T]he determination of whether a person is disabled 

by pain or other symptoms is a two-step process.” Craig, 

76 F.3d at 594. Once a threshold determination is made that 

 4 Thompson asserts that if the ALJ found Dr. Hughes’ letter 

statement was lacking in specificity, he should have contacted 

Dr. Hughes for clarification. Regulations may require such 

action recontact when evidence is inadequate to determine 

whether a claimant is disabled, . sSee 20 C.F.R. 

§§ 404.1527(c)(3), 416.927(c)(3), but here . Here, the ALJ had 

sufficient evidence to reach a decision.
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objective medical evidence shows the existence of a medical 

impairment which could reasonably be expected to produce the 

pain alleged, “the intensity and persistence of the claimant’s 

pain, and the extent to which it affects her ability to work,

must be evaluated.” Id. at 595. The second step is analyzed 

using statements from treating and nontreating sources and from 

the claimant. 20 C.F.R. §§ 404.1529(a), 416.,929(a) (2010). 

Factors in evaluating the claimant’s statements include 

consistency in the claimant’s statements, medical evidence, 

medical treatment history, and the adjudicator’s observations of 

the claimant. See SSR 96-7p. The ALJ clearly complied with 

these requirements.

IV.

Based on the foregoing, we find that substantial 

evidence supports the agency decision, and affirm the judgment 

of the district court. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED