An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1130
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 October 2014


LISA M. TESTER,
          Petitioner,

      v.                                      Watauga County
                                              No. 12 CVS 232
NORTH CAROLINA DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
          Respondent.


      Appeal by      petitioner     from order      entered 28 May 2013 by

Judge Joseph N. Crosswhite in Watauga County Superior Court.

Heard in the Court of Appeals 19 March 2014.


      Samuel F. Furgiuele, Jr., for petitioner-appellant.

      Attorney General Roy Cooper, by Assistant Attorney General
      Ellen A. Newby, for respondent-appellee.


      GEER, Judge.


      Petitioner Lisa M. Tester appeals from an order affirming

the determination of the North Carolina Department of Health and

Human   Services     ("DHHS")     that   petitioner     is   not    eligible    for

Medical Assistance for the Disabled ("Medicaid") because she has

the residual functional capacity ("RFC") to engage in light work

and is not prevented from performing her past relevant work as
                                              -2-
an    admissions     supervisor.              Because     the    determination             that

petitioner is not disabled is supported by substantial evidence

and was not made upon unlawful procedure, we affirm.

                                          Facts

       At the time of the hearing before the DHHS hearing officer,

petitioner was 44 years old.              She had graduated from high school

and    worked   as   an   "admissions          supervisor"       at    Watauga          Medical

Center from 1985 through 1998.                  That job involved skilled labor

and sedentary maximum sustained work.

       Petitioner applied for Medicaid on 14 July 2011 through the

Watauga    County    Department          of    Social    Services          ("DSS").           DSS

denied    petitioner's         request    for       Medicaid    on     5    October       2011.

Petitioner appealed the denial to DHHS on 18 October 2011.                                     On

26    January   2012,     following       an    evidentiary       hearing,         the     DHHS

hearing    officer      issued     a     decision       affirming          the    denial       of

Medicaid.

       The hearing officer found that petitioner has a diagnosis

and      complains        of      Crohn's           disease,         abdominal            pain,

headaches/migraines, high blood pressure, pancreatitis, reflux

disease, ulnar nerve lesion, stress, low immune system, asthma,

and    arthritis.         The    hearing        officer       concluded          that    these

impairments "are severe but do not meet or equal the level of

severity    specified      in     20CFR       [sic]    Part     404,       Appendix       1    to
                                                   -3-
Subpart       P        (Listing           of     Impairments)."               Considering            the

combination            of    all     of    petitioner's           impairments       and     related

symptoms, the hearing officer next concluded that petitioner has

the    RFC    to        engage        in        light     work     and     that     petitioner's

impairments            and    related          symptoms     did     not    prevent        her       from

performing her past relevant work as an admissions supervisor,

at    least   as        the    job    is       generally     performed        in    the    national

economy.

       Based upon these findings, the hearing officer concluded

that     petitioner           does        "not     meet     the     disability          requirement

specified         in    20    CFR     416.920(g)          and     therefore        is    not    found

disabled or eligible for Medicaid."                                Petitioner appealed the

decision      to       the    Chief        Hearing        Officer,      and   a    Final        Agency

Decision      was       issued       on    21     March     2012    affirming       the     hearing

officer.

       Petitioner            filed    a        petition    for     judicial       review       of   the

Final Agency Decision in Watauga County Superior Court.                                             The

court reviewed the administrative record and concluded that the

hearing officer's findings of fact were supported by substantial

evidence in the record and that the hearing officer utilized the

proper     procedures              for     determining           that     petitioner       is       not

disabled.         The court entered an order affirming the Final Agency
                                        -4-
Decision on 28 May 2013.               Petitioner timely appealed to this

Court.

                                   Discussion

      Review of an agency decision denying a claim for Medicaid

is governed by the North Carolina Administrative Procedures Act.

N.C. Gen. Stat. § 108A-79(k) (2013).                 Generally, when reviewing

a superior court's order on appeal from a final agency decision,

this Court is "required to 'examine[] the trial court's order

for error[s] of law' by '(1) determining whether the trial court

exercised the appropriate scope of review and, if appropriate,

(2) deciding whether the court did so properly.'"                    Gray v. N.C.

Dep't of Env't, Health & Natural Res., 149 N.C. App. 374, 379,

560 S.E.2d 394, 398 (2002) (quoting Amanini v. N.C. Dep't of

Human    Res.,   114   N.C.    App.    668,   675,    443   S.E.2d    114,    118-19

(1994)).

      "The applicable standards of review under the APA are that

'[q]uestions      of   law    receive    de   novo     review,      whereas    fact-

intensive issues such as sufficiency of the evidence to support

[an   agency's]    decision      are    reviewed      under   the    whole-record

test.'"     Meza v. Div. of Soc. Servs., 364 N.C. 61, 69, 692

S.E.2d 96, 102 (2010) (quoting N.C. Dep't of Env't & Natural

Res. v. Carroll, 358 N.C. 649, 659, 599 S.E.2d 888, 894 (2004)).

                 When        conducting de novo         review, the
            reviewing         court   consider[s]       the   matter
                                   -5-
           anew[]   and   freely   substitutes   its   own
           judgment for the agency's.       However, when
           applying   the    whole   record    test,   the
           reviewing court may not substitute its
           judgment for the agency's as between two
           conflicting views, even though it could
           reasonably have reached a different result
           had it reviewed the matter de novo. Rather,
           a court must examine all the record evidence
           -- that which detracts from the agency's
           findings and conclusions as well as that
           which tends to support them -- to determine
           whether there is substantial evidence to
           justify the agency's decision.      Substantial
           evidence is defined as relevant evidence a
           reasonable mind might accept as adequate to
           support a conclusion.

Id.   at   69-70,   692   S.E.2d   at    102   (internal   citations   and

quotation marks omitted).

      In this case, petitioner challenges DHHS' conclusion that

she is not disabled.      Disability is defined as "the inability to

do any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months."              20

C.F.R. § 404.1505 (2014).

      In order to determine whether a claimant is disabled, DHHS

employs a five-step sequential analysis:

           1.   An   individual   who   is  working   and
                engaging    in     substantial    gainful
                activity will not be found to be
                "disabled"    regardless    of    medical
                findings;
                                       -6-
            2.    An individual who does not have a
                  "severe impairment" will not be found
                  to be disabled;

            3.    If an individual is not working and is
                  suffering from a severe impairment that
                  meets the durational requirement and
                  that   "meets    or  equals    a  listed
                  impairment in Appendix 1" of Subpart P
                  of Regulations No. 4, a finding of
                  "disabled"    will  be    made   without
                  consideration of vocational factors;

            4.    If,     upon    determining   residual
                  functional capacity, the Commissioner
                  finds that an individual is capable of
                  performing work he or she has done in
                  the past, a finding of "not disabled"
                  must be made;

            5.    If an individual's residual functional
                  capacity precludes the performance of
                  past work, other factors including age,
                  education, and past work experience,
                  must be considered to determine if
                  other work can be performed.

Rogers v. Barnhart, 204 F. Supp. 2d 885, 890 (W.D.N.C. 2002)

(summarizing 20 C.F.R. § 404.1520(b)-(f)).                The burden of proof

is on the claimant with respect to the first four steps of the

inquiry,    but   shifts    to   the   agency   in   step   five.      Grant    v.

Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).

    In this case, there is no dispute as to steps one through

three of the analysis.            DHHS concluded that petitioner is not

currently    engaging      in    substantial    gainful     activity   and     has

severe impairments that meet the durational requirements in 20
                                         -7-
C.F.R. § 416.909 (2014), but are not severe enough to meet or

equal a listed impairment in Appendix 1 of Subpart P.

       However,    petitioner     challenges     DHHS'     analysis    regarding

step four, including its determination of petitioner's RFC and

its finding, based on her RFC, that petitioner is capable of

performing work she had done in the past.                With respect to step

four, the hearing officer found, based on the evidence in the

record and "[c]onsidering the combination of all impairments and

related symptoms,"         that petitioner has the RFC to engage in

"light work."      The hearing officer further found that petitioner

was,    given    her   RFC,   able   to    perform   her    past    work     as   an

admissions supervisor.

       Petitioner first argues that in making this determination,

DHHS failed to give proper weight to the expert opinions of

petitioner's      treating     physicians.       Petitioner        points    to    a

January 2012 letter from Dr. Peter J. Haibach, who had been

petitioner's treating physician for 25 years, stating "[b]ecause

of     chronic    health      problems     of   Crohn's     Disease,        Crohn's

associated arthritis, asthma and morbid obesity[,] Ms. Tester is

clearly unable to undertake gainful employment."                   In addition,

one of petitioner's other doctors, Dr. John Whitlock, wrote in

an April 2011 report that "[u]nfortunately I think [petitioner]

is disabled to gainful employment . . . ."                 Citing 20 C.F.R. §§
                                            -8-
404.1527 and 416.927, petitioner argues that these opinions were

entitled to controlling weight.               We disagree.

     Under 20 C.F.R. § 416.927(c) (2014),1 when determining the

weight to be given a medical opinion, the hearing officer is

required      to    consider      various    factors,     including     whether     the

doctor   examined       the       petitioner,     whether   the   doctor      was   the

petitioner's         treating      physician,     the   supportability        of    the

doctor's opinion, consistency of the opinion with the record as

a whole, and any specialization of the expert.                    Generally, more

weight will be given to a treating physician who has established

a relationship with the patient over a long period of time.                         Id.

     "Although the treating physician rule generally requires a

court to accord greater weight to the testimony of a treating

physician, the rule does not require that the testimony be given

controlling weight."              Hunter v. Sullivan, 993 F.2d 31, 35 (4th

Cir. 1992) (per curiam), superseded by regulation in nonrelevant

part,    20        C.F.R.    §§     404.1527(c)(2),       416.927(c)(2)       (2012).

However,      when     the    treating      physician's     opinions    are    "well-

supported      by     medically       acceptable     clinical     and    laboratory

diagnostic techniques and [are] not inconsistent with the other
     1
      Effective 26 March 2012, 20 C.F.R. § 416.927 was amended so
that the provisions previously designated as subparagraph (d) at
issue in this appeal became subparagraph (c), although the text
remained unchanged. See How We Collect and Consider Evidence of
Disability, 77 FR 10651, 10657.     For clarity, we cite to the
current version of the regulation.
                                      -9-
substantial   evidence      in   [the]      record,"   they    will      be   given

controlling weight on the issues of the nature and severity of

the impairment.      20 C.F.R. § 416.927(c)(2); see also SSR 96-2p,

1996 WL 374188 (July 2, 1996)               ("It is an error to give an

opinion controlling weight simply because it is the opinion of a

treating    source    if    it   is   not    well-supported        by    medically

acceptable clinical and laboratory diagnostic techniques or if

it is inconsistent with the other substantial evidence in the

case record.").

    With respect to an issue reserved to the Social Security

Commissioner,    a   treating     physician's    opinion      is   not    afforded

greater    weight    or    any   special     significance.         20    C.F.R.   §

416.927(d).     A claimant's RFC is a determination reserved to the

Social Security Agency:

                 (1) Opinions that you are disabled.
            We   are    responsible   for   making   the
            determination or decision about whether you
            meet the statutory definition of disability.
            In so doing, we review all of the medical
            findings and other evidence that support a
            medical source's statement that you are
            disabled.   A statement by a medical source
            that you are "disabled" or "unable to work"
            does not mean that we will determine that
            you are disabled.

                 (2) Other opinions on issues reserved
            to the Commissioner.        We use medical
            sources, including your treating source, to
            provide evidence, including opinions, on the
            nature and severity of your impairment(s).
            Although we consider opinions from medical
                                       -10-
            sources on issues such as whether your
            impairment(s)    meets     or    equals   the
            requirements of any impairment(s) in the
            Listing of Impairments in appendix 1 to
            subpart P of part 404 of this chapter, your
            residual functional capacity (see §§ 416.945
            and   416.946),   or   the    application  of
            vocational factors, the final responsibility
            for deciding these issues is reserved to the
            Commissioner.

Id. (emphasis added).

       Here, the hearing officer acknowledged the opinions of Dr.

Whitlock and Dr. Haibach in Finding of Fact 6 and stated that

she considered their opinions in accordance with 20 C.F.R. §

416.927.     As an initial matter, the hearing officer properly

noted that       the opinions were not entitled to               special   weight

because    the    doctors   were     expressing   opinions       on   matters   --

petitioner's RFC and disability -- reserved for decision by the

Commissioner.       Further, the hearing officer concluded that those

opinions were also entitled to little weight because they are

"not descriptive as to why [petitioner] is unable to work and

state[] no restrictions [petitioner] would have nor the reasons

for the restrictions."         Under 20 C.F.R. § 416.927(c)(3), called

the    "supportability"     factor,     "[t]he    better    an   explanation     a

source provides for an opinion, the more weight we will give

that    opinion."      Thus,    in    this    case,   the   hearing     officer,

consistent   with     the   applicable       regulations,    relied     upon    the
                                            -11-
doctors' opinions' lack of "supportability" in determining to

give those medical opinions little weight.

     We disagree with petitioner's contention that the hearing

officer improperly interposed herself as a medical expert when

she discredited Dr. Haibach's opinion on the basis that "[t]here

are no imaging studies in the available medical records that

show any significant arthritis in her joints."                       This finding is

relevant to the factor of supportability and is consistent with

20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. A § 1.00(C)(1), which

provides     that     "diagnosis       and     evaluation       of    musculoskeletal

impairments    should        be    supported,      as   applicable,        by   detailed

descriptions        of     the     joints,     including        ranges     of    motion,

condition of the musculature (e.g., weakness, atrophy), sensory

or   reflex        changes,       circulatory       deficits,        and    laboratory

findings,     including          findings    on    x-ray   or    other     appropriate

medically acceptable imaging."               (Emphasis added.)

     Petitioner also argues that the hearing officer improperly

ignored Dr. Julie L. Colantoni's opinion that she had functional

limitations as a result of her frequent bathroom visits.                              We

believe     that     petitioner       has     misinterpreted         Dr.   Colantoni's

opinion.      Dr.        Colantoni's    17    September     2011      medical     report

noted:

            With regards to her Crohn disease, she has
            had multiple surgeries and this is a
                                         -12-
            lifelong disease that could affect her in
            the future. As of right now, besides having
            some abdominal pain and frequently going to
            the bathroom, she is not having any current
            problems and nothing that would necessarily
            affect her functionally.

(Emphasis added.)          We read this opinion as acknowledging that

petitioner has a problem with frequent trips to the bathroom and

abdominal    pain,       but    concluding       that    this     problem     does      not

"necessarily affect her functionally."                   Contrary to petitioner's

contention,       this   opinion      supports     the    hearing      officer's        RFC

determination.

    Petitioner next argues that the RFC determination was not

supported    by    substantial        evidence     in    the    record      because     the

hearing officer failed to consider the impact of petitioner's

problems with numerous, chronic bowel movements and incontinence

on her ability to engage in substantial gainful employment on a

sustained basis.         "When determining a claimant's RFC, the ALJ is

required    to    take    the    claimant's       reports       of   pain    and     other

limitations into account, but is not required to accept the

claimant's       subjective         complaints     without       question;      he      may

exercise     discretion         in     weighing     the        credibility      of      the

claimant's    testimony        in    light   of   the     other      evidence      in   the

record."      Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)

(internal citations omitted).                As the Seventh Circuit Court of

Appeals has explained, "the ALJ must consider the claimant's
                                              -13-
level      of    pain,   medication,          treatment,    daily    activities,       and

limitations,        20   C.F.R.     §    404.1529(c),       and    must     justify    the

credibility        finding    with       specific     reasons      supported     by    the

record[.]"        Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009).

       A        claimant's     allegations           regarding       the      intensity,

persistence, severity, and extent to which the pain or other

symptoms of an impairment affect her ability to work "may not be

discredited         solely    because         they   are    not     substantiated      by

objective evidence of the pain [or another symptom] itself or

its severity[.]"          Craig v. Chater, 76 F.3d 585, 595 (4th Cir.

1996), superseded by regulation in nonrelevant part, 20 C.F.R.

§§    404.1527      (c)(2),   416.927(c)(2)          (2012).        Nevertheless,      the

claimant's allegations "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."                    Id.

       At the hearing, petitioner testified that she was having 10

to 15 bowel movements a day due to her Crohn's disease, and that

she has accidents every day which require her to shower and

change      her    clothes.         These      accidents    can     be     triggered    by

activities such as getting up from a couch or chair or simply

sneezing.         Because of her difficulty with these issues, it is
                                     -14-
difficult for her to make plans because she cannot predict when

she will need to use the bathroom.

      The hearing officer found petitioner's testimony not fully

credible in Finding of Fact 7:

           After considering the medical evidence of
           record,    the   undersigned   finds    that
           [petitioner's]     medically    determinable
           impairments could reasonably be expected to
           produce some of the alleged symptoms, but
           that [petitioner's] statements concerning
           the intensity, persistence, and limiting
           effects of these symptoms are not entirely
           credible.

Petitioner argues that "no explanation was given as to what ways

Ms.   Tester's    testimony    was   not    credible,   and    there   was   no

indication which parts of the testimony were accepted, as the

finding   indicated     only     a   partial,     rather      than     a   full

discrediting."      We disagree.       The finding indicates that the

hearing officer was discrediting the "intensity, persistence,

and limiting effects" of petitioner's symptoms.               In other words,

the finding does not discredit the existence of the symptoms

themselves, but the degree to which they affected petitioner.

      Regarding     petitioner's      symptoms    of    incontinence         and

frequent bowel movements, the hearing officer's findings contain

several references to medical records in which physical exams

and   petitioner's     own     statements     contradict      her    testimony

regarding the intensity and limiting effects of this impairment.
                                           -15-
This includes findings that petitioner denied having abdominal

pain on 4 May 2011, 10 May 2011, and 27 September 2011; that

petitioner had not taken anti-Crohn's medications in four years;

and    that    her     Crohn's      disease      had    improved,       that       her    renal

function showed improvement, and that a physical exam on 27

September        2011       "showed       abdomen           without       tenderness           or

organomegaly."          These     findings       were       supported     by    substantial

evidence      and,     in   turn,      support    the       credibility       finding         that

petitioner's testimony was inconsistent with objective medical

findings in the record.

       Petitioner interprets the                 hearing officer's             finding that

"[t]he     available        medical      records       do     not     show     any   ongoing

treatment      for     Crohn's      disease      nor    ongoing     complaints           at   her

doctors       visits    regarding        significant         bathroom        frequency"        as

indicating that the hearing officer failed to consider any of

petitioner's complaints of frequent bowel movements.                                 However,

the hearing officer was merely pointing out                             that the         recent

medical documentation was inconsistent with petitioner's claim

that     symptoms       from     her    Crohn's        disease      and      her     bathroom

frequency precluded her from working.                         In addition to records

discussing the improvement in her Crohn's disease, the medical

records,      consistent       with     this     finding,      show     that       petitioner

reported the frequency of her bowel movements on visits to her
                                       -16-
doctor on 28 October 2004, 21 February 2005, 20 May 2005, 30

March 2006, 12 October 2006, 29 March 2007, 8 September 2008,

and 30 October 2009.         In contrast, the reports from more recent

doctors' visits on 21 November 2010, 28 April 2011, and 18 May

2011 do not contain any reference to or complaints regarding the

frequency of bowel movements.

      Despite frequent trips to the bathroom and some abdominal

pain, there was still substantial evidence in the record to

support the conclusion that petitioner has an RFC to engage in

light   work,     as   the   hearing   officer      found.     Dr.     Colantoni's

report notes that she has a normal gait, full range of motion,

ability to use her hands well, no atrophy, and normal range of

motion and ability to perform the tasks associated with light

work.      Dr. Colantoni also asserted that her abdominal pain and

frequent     bathroom    trips    would       not   "necessarily       affect   her

functionally."          We    conclude     that      the     hearing     officer's

conclusion that petitioner can engage in light work is supported

by substantial evidence in the record.

      The question remains whether, given petitioner's RFC, the

hearing officer erred in concluding that petitioner could engage

in   her   past   relevant    work.       Petitioner       first   contends     that

defendant erred in taking official notice of the Dictionary of

Occupational Titles ("DOT") of the U.S. Department of Labor and
                                              -17-
failing       to      specifically         cite       the       job    description       of     an

"admissions supervisor" as petitioner contends, was required by

N.C.     Gen.      Stat.     §    150B-30    (2013).             Petitioner       argues      that

without being notified of the exact job description, petitioner

"had     no     ability,         other    than    by       speculating         about    the     job

description           upon       which     the        hearing         officer     relied,        to

demonstrate either that the description itself was faulty or

that her residual capacity did not allow her to perform the

duties described."

         The hearing officer's order stated that petitioner's "work

as   a    [sic]       Admissions         Supervisor        is    considered       skilled       and

requires        sedentary         maximum        sustained        work     capabilities          as

supported        by    the       [DOT]."         To    determine        what     is    meant     by

"skilled" and "sedentary" work, petitioner need only consult the

physical        exertion         requirements         as    defined       in    20     C.F.R.    §

404.1567 (2014)            and the skill requirements as defined in 20

C.F.R. § 404.1568 (2014).                  Alternatively, petitioner can consult

the DOT itself for a specific job description.                                 We fail to see

how the hearing officer's failure to recite the job description

in the order precludes                   petitioner        or a reviewing court from

determining the relevant information: the mental and physical

demands of the job.
                                       -18-
      Petitioner also cites SSR 82-61, 1982 WL 31387 (Jan. 1,

1982) to suggest the hearing officer's job description was too

general.     However, SSR 82-61 provides three possible tests for

determining whether a claimant retains the ability to perform

her past relevant work.            The hearing officer used the third

test,   which     allowed   her   to   rely     upon    the       DOT    to    determine

"[w]hether    the    claimant     retains     the    capacity       to       perform   the

functional    demands    and    job    duties    of    the    job       as    ordinarily

required     by     employers     throughout         the     national          economy."

(Emphasis added.)

      SSR   82-61    acknowledges      that    the    former       job    as    actually

performed by the claimant "may have involved functional demands

and   job   duties    significantly      in     excess       of    those       generally

required for the job by other employers throughout the national

economy."       Nevertheless, under this test, the claimant should

still be found "not disabled" if she is able to perform the job

as defined in the DOT, even if she is unable to perform the job

as actually required in her former position.                      Id.     Petitioner's

claimed inability to demonstrate that the DOT job description

was not exactly the same as the job as actually performed by

petitioner was, therefore, immaterial under this test.

      Petitioner next argues that the hearing officer erred by

omitting     from     the    record      two        "Disability          Determination
                                      -19-
Explanation" reports.        One evaluation was performed by Dr. A. K.

Goel   on   23   September    2011,    and     the    second     evaluation     was

performed by Dr. Robert Gardner on 16 November 2011.                   Petitioner

contends that these reports were not considered by the hearing

officer.     However, DHHS points out that the hearing officer must

have    referenced   these     reports       when    her    decision   indicated

petitioner was able to perform "light work with no climbing a

ladder, rope or scaffold, . . . and avoidance from concentrated

exposure to dusts/fumes/odors[,]" because those limitations are

only mentioned in the two reports.

       Since these reports were available to the hearing officer

at the time of the hearing on 19 January 2012 and because we

have not found any other document in the record containing the

same limitations as listed in the RFC finding, it appears that

the hearing officer did consider and rely upon the reports.                     The

reports were also considered by the superior court, as it is

undisputed    that   the   petitioner    submitted         the   reports   to   the

superior court without objection.              Thus, petitioner has failed

to show that these reports were not considered by the hearing

officer or the superior court.

       In any event, petitioner argues that these reports were

critical to her case because both evaluations determined that

petitioner is unable to return to her previous work because she
                                   -20-
is now limited to unskilled work.         The 23 September 2011 report

specified that petitioner cannot perform her past job because

she is "limited to SRRTs [simple, routine, repetitive tasks]

which precludes past work (SVP 4)."2       The 16 November 2011 report

noted that "[c]urrently, the claimant also has mental health

restrictions and so therefore cannot return to her past (semi-

skilled) work.      She must return to other work."

     The     reports'   findings   that   petitioner   is   limited   to

unskilled work was evidence that would support a finding that

petitioner    had   certain   mental   limitations   that   reduced   her

ability to do her past relevant work, which is classified as

"skilled."     In determining a claimant's RFC, the agency must

also consider mental capacity limitations.

           (c) Mental abilities. When we assess your
           mental abilities, we first assess the nature
           and extent of your mental limitations and
           restrictions   and    then    determine   your
           residual   functional    capacity   for   work
           activity on a regular and continuing basis.
           A limited ability to carry out certain
           mental activities, such as limitations in
           understanding, remembering, and carrying out
           instructions,      and      in      responding
           appropriately to supervision, co-workers,
           and work pressures in a work setting, may
           reduce your ability to do past work and
           other work.

20 C.F.R. § 404.1545(c) (2014).

     2
      "Special vocational preparation, level 4," requires three
to six months to learn the job.
                                     -21-
      Nevertheless,    the    same   reports     also     contained        findings

supporting the conclusion that petitioner was not so limited.

The 16 November 2011 report noted that "[o]verall, the totality

of the medical evidence in file indicates that the clmt [sic]

has the mental capacity to understand and follow instructions,

sustain attention to perform tasks, interact w/ others in a work

setting,   and    tolerate    workplace     stress   as    described       herein."

The reports' findings concerning petitioner's mental capacity

are consistent with other evidence in the record, referenced in

the   hearing     officer's    decision,     showing      a    lack   of     mental

impairments.       Additionally, both reports ultimately               concluded

that petitioner is not disabled.

      Based upon our review of the entire record, the evidence in

the   "Disability      Determination         Explanation"        reports       that

petitioner   is    limited    to   unskilled    work      is   insufficient      to

warrant reversal of the hearing officer's conclusion, based on

the entire record, that petitioner is able to return to her past

work as an admissions supervisor.           There is substantial evidence

in the record that petitioner does not have mental impairments

that would impair her from performing the tasks required for her

prior position.

      In conclusion, we hold that the superior court properly

concluded that DHHS correctly utilized the five-step analysis
                                       -22-
for disability determinations under 20 C.F.R. § 416.920 and that

the   final    agency      decision   concluding    that   petitioner    is   not

disabled      is   based    upon   substantial     evidence   in   the   record.

Accordingly, we affirm.


      Affirmed.

      Judges STEPHENS and ERVIN concur.

      Report per Rule 30(e).
