                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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

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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

                                              3
“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

                                                 4
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

                                          5
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 five-

step       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.



                                                   6
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

                                             7
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

                                              8
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

                                              9
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

                                           10
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

                                                11
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.

                                              12
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   non-

examining 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

                                           13
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

                                             14
in the briefing before the court and argument would not assist

our decisional process.

                                                      AFFIRMED




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