Swan v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Accepting without modification 18 Report and Recommendation. The Commissioner's determination that Swan was not disabled is affirmed. Judgment shall enter against Swan and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 8/17/2017. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
WENDY L. SWAN,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) by the Honorable
Kelly K.E. Mahoney, United States Magistrate Judge. See Doc. No. 18. Judge Mahoney
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Wendy Swan’s application for Social Security disability
benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Swan has filed timely objections (Doc. No. 19) to the R&R. The Commissioner
has filed a response (Doc. No. 20). The procedural history and relevant facts are set
forth in the R&R and are repeated herein only to the extent necessary.
Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 641, 645 (8th Cir.
1999.) The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even if the court “might have weighed the evidence differently.”
Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.
The court may not reverse the Commissioner’s decision “merely because
substantial evidence would have supported an opposite decision.” Baker v. Heckler, 730
F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005) (“[A]n administrative decision is not subject to reversal simply because some
evidence may support the opposite conclusion.”).
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 74 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Judge Mahoney noted that Swan alleged disability due to depression, anxiety and
attention deficit hyperactivity disorder (ADHD). Doc. No. 18 at 1. After setting forth
the relevant facts, she discussed the ALJ's decision to discount the treating sources’ workrelated limitations as follows:
As part of their RFC assessments, Drs. Netolicky and Perkins had
to evaluate Swan’s mental ability to perform various work activities,
including her ability to concentrate, to follow instructions, to interact with
coworkers and the public, and to maintain regular attendance. AR 469-71,
474-76. They both noted serious limitations in Swan’s ability to pay
attention for more than two hours and to deal with work stress, and they
both found that she would miss more than four days of work a month due
to her impairments. Id. At the time they evaluated Swan’s RFC, Dr.
Netolicky had been treating Swan every one to three months for more than
four years, and Dr. Perkins had been treating Swan biweekly for almost
two years. AR 467, 471, 472, 476. This treatment consisted primarily of
psychotherapy and, in Dr. Netolicky’s case, prescribing medications,
although Dr. Perkins administered several neuropsychological tests when
she first evaluated Swan in 2012. AR 448-55, 467, 472. Treatment notes
reflect that the doctors made objective assessments of Swan based on their
observations, such as evaluating her mood and grooming, but also that they
took note of Swan’s communicated feelings of anxiety and mood. AR 478503.
Substantial evidence supports the ALJ’s determination that Swan’s
treating doctors’ RFC assessments were based on Swan’s statements of her
limitations. The only objective testing of Swan was done by Dr. Perkins in
2012, and that testing does not support limitations as severe as those found
by Swan’s treating doctors. On the Connors’ Continuous Performance Test
II—which tests focused, sustained attention—Swan’s overall performance
“was labeled as good with no indication of attention difficulties.” AR 454.
Other tests revealed only “mild difficulties with fluctuating attention and
distractibility” in the “quiet, distraction-free testing environment.” Id. The
Minnesota Multiphasic Personality Inventory-2 RF indicated that Swan had
“cognitive deficits related to memory” and concentration. Id. It also
showed that she suffered from “emotional distress related to anxiety and
depression,” as well as social avoidance and “feelings of interpersonal
persecution.” Id. The neurophysiological test results do not speak to many
of the abilities evaluated by Drs. Netolicky and Perkins in their RFC
assessments, such as Swan’s ability to maintain attendance or deal with
work stress. Moreover, the test results contradict Drs. Netolicky’s and
Perkins’s assessments regarding Swan’s ability to pay attention: they both
found that she would be unable to meet competitive standards when it came
to maintaining attention for two hours, but the test results indicate only mild
difficulties at most. AR 454, 469, 474.
Doc. No. 18 at 12-13. Judge Mahoney found that substantial evidence supported the
ALJ's determination that the work-related limitations provided by Drs. Netolicky and
Perkins were based on Swan’s subjective complaints and not objective medical testing.
Id. at 14-15.
Judge Mahoney next evaluated the weight the ALJ gave to the treating sources,
and whether the ALJ offered good reasons for discounting their opinions, as follows:
The ALJ found Swan exaggerated “the intensity, persistence and
limiting effects of [her] symptoms.”1 AR 19. Thus, the ALJ gave only
some and limited weight to her treating doctors’ opinions because those
opinions were based on Swan’s subjective statements of her symptoms. AR
20-21. Because Swan’s treating doctors relied on Swan’s discredited
description of her limitations when determining her RFC (as opposed to
“medically acceptable clinical and laboratory diagnostic techniques”), the
ALJ was not required to give their opinions controlling weight. See Julin
v. Colvin, 826 F.3d 1082, 1085, 1089 (8th Cir. 2016) (holding that the ALJ
Swan does not challenge this credibility finding.
“permissibly declined to give controlling weight to [the treating doctor’s]
opinions on [claimant’s] work-place limitations” that “relied on [claimant’s]
subjective complaints” of depression and anxiety when the ALJ had found
the claimant not credible); Papesh, 786 F.3d at 1132-33 (holding that the
ALJ’s finding that the treating doctor’s opinion “appears to be based on the
claimant’s subjective assertions of pain” was a “potential bas[i]s to not give
controlling weight to [the] opinion”).
Doc. No. 18 at 15-16. Judge Mahoney recommends a finding “that the ALJ did not err
in assigning only some and limited weight to the opinions of Swan’s treating physicians,
since those opinions were based on Swan’s subjective statements of her symptoms that
the ALJ found exaggerated.” Id. at 18.
Finally, Judge Mahoney evaluated whether some medical evidence supported the
ALJ's RFC finding:
Here, the ALJ incorporated some of the limitations found by Drs.
Netolicky and Perkins into her RFC determination. For example, Drs.
Netolicky and Perkins noted Swan faced serious difficulties in
understanding and carrying out detailed instructions, interacting with
people, and responding appropriately to changes in a routine setting. AR
The ALJ’s RFC determination recognized these
[Swan] can perform tasks learned in 30 days with simple work
decisions, little judgment and occasional work place changes.
She can tolerate only occasional interpersonal interaction.
She is unable to work in close proximity with others, such as
she cannot stand next to or be involved with others[’] tasks or
The ALJ’s RFC determination, however, does not include Drs.
Netolicky’s and Perkins’s findings that Swan could not pay attention for
two hours, maintain socially appropriate behavior, make it through a
workday or work week without interruptions from her impairments, sustain
an ordinary routine without special supervision, or miss less than four days
of work a month. AR 469-71, 474-76. Instead, the ALJ relied on the
opinions of two state agency medical consultants, who had found that Swan
faced no or moderate limitations in those areas.2 AR 21, 68-69, 80-81.
The ALJ did not include these limitations because they were based on
Swan’s subjective complaints and were inconsistent with Swan’s dailyliving and work activities. AR 17-21. For example, Swan testified at the
hearing that she was able to work on her jewelry for two hours at a time,
and she had previously reported working four hours at a time on her
jewelry—suggesting that she could maintain attention for two hours. AR
44, 242, 469, 474.
Doc. No. 18 at 19-20. Judge Mahoney found that the record does not support the extreme
limitations set forth by Drs. Netolicky and Perkins. Id. at 20. Judge Mahoney further
found that some medical evidence supported the ALJ's decision, noting that the ALJ
adopted some limitations from Swan’s treating doctors while properly discounting
portions of their opinions. Id. at 20-21. As such, Judge Mahoney recommends I affirm
the ALJ's determination that Swan is not disabled.
Swan objects to Judge Mahoney’s findings that (1) the ALJ's RFC properly
included all work-related limitations and (2) that the ALJ's RFC was supported by
substantial evidence. I will review these issues de novo.
The Work-Related Limitations
The record includes work-related limitations offered by two treating sources,
Bryan Netolicky, M.D., and Angela Perkins, Psy.D.
The state agency consultants did not explicitly address how many days of work a month Swan
would miss due to her impairments, but they did find her only moderately limited in her ability
to maintain regular attendance. AR 69, 80.
Dr. Netolicky opined, with regard to unskilled work, that Swan was unable to
meet competitive standards in her ability to maintain attention for two hours, sustain an
ordinary routine without special supervision, work in coordination with or proximity to
others without being unduly distracted, accept instruction and respond appropriately to
supervisors, respond appropriately to changes in routine work setting, deal with normal
work stresses. He also opined that Swan was either seriously limited or unable to meet
competitive work standards in her ability to get along with co-workers or peers without
unduly distracting them or exhibiting behavioral extremes. AR 469-70. Dr. Netolicky
opined that Swan was limited but satisfactory with regard to her ability to understand and
remember very short and simple instruction, carry out very short and simple instruction,
make simple work-related decisions, ask simple questions or request assistance and be
aware of normal hazards and take appropriate precautions. Id.
Dr. Netolicky further opined that Swan was seriously limited with regard to her
ability to remember work-like procedures, maintain regular attendance and be punctual
within customary, usual strict tolerances, and perform at a consistent pace without an
unreasonable number and length of rest periods. Id. I note that “seriously limited” is
not as limited as “unable to meet competitive standards” on the chart used by Dr.
Netolicky. Id. Finally, Dr. Netolicky opined that Swan had no useful ability to function
with regard to completing a normal workday and workweek without interruptions from
psychologically based symptoms. Id.
In addressing Swan’s specific job attributes, Dr. Netolicky opined that Swan was
seriously limited with regard to her ability to interact appropriately with the general public
and adhere to basic standards of neatness and cleanliness. He also opined that she could
not meet competitive standards in her ability to travel in unfamiliar places. AR 470-71.
Finally, Dr. Netolicky indicated that Swan would miss more than 4 days of work per
month. AR 471. Dr. Netolicky stated that Swan gets very anxious and depressed easily,
especially when she is stressed or overworked. AR 471.
Dr. Perkins began treating Swan in 2012, and completed a mental medical source
statement on May 7, 2014. AR 472-76. Dr. Perkins did not find greater limitations than
Dr. Netolicky, with the following exceptions:
(1) Swan’s ability to perform at a
consistent pace without an unreasonable number and length of rest periods showed that
she was unable to meet competitive standards, (2) Swan’s ability to accept instructions
and respond appropriately to criticism from supervisors illustrated she had no useful
ability to function, and (3) with regard to Swan’s ability to deal with normal work stress,
she had no useful ability to function. AR 475. Further, Dr. Perkins opined that Swan
would miss more than 4 days of work a month. AR 476.
Like Judge Mahoney, I find that the record supports the ALJ's conclusion that
Drs. Netolicky and Perkins based their opinions on Swan’s subjective complaints. The
only objective testing was performed by Dr. Perkins in 2012 and the results do not support
the limitations offered by Drs. Netolicky and Perkins. After performing various objective
tests, Dr. Perkins found that Swan exhibited only mild difficulties with fluctuating
attention and distractibility. AR 451-52. Based on the Continuous Performance Test
(CPT) II, Dr. Perkins found that Swan’s performance ranged from atypical to average.
AR 452. All of the objective testing reflected that Swan was among low average, average
or high average. AR 452-53. The testing also reflected that Swan was within normal
limits. AR 453.
Dr. Perkins’ opinion is inconsistent with her objective medical testing and
findings. “An ALJ may properly discount a doctor's opinion when it is based on a
claimant's subjective complaints.” Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir.
2012). “An ALJ may ‘discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)).
Due to this
inconsistency, and the fact that Dr. Perkins relied on subjective complaints, the ALJ was
permitted to discount Dr. Perkins’ opinion.
The same reasoning applies to Dr. Netolicky, as his opinion, too, is inconsistent
with the objective medical testing discussed above. An ALJ may discount the weight
given to opinions of treating doctors when, as here, the opinions are inconsistent with
other medical records. See Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013) (“We
conclude that substantial evidence supports the ALJ's determination that [the doctor's]
opinion was inconsistent with the treatment record and thus not entitled to controlling
weight.”) In addition, Dr. Netolicky’s opinion expressly reflects that he relied on Swan’s
subjective complaints. He stated, for example, that Swan “has consistently expressed
persistent difficulties in the above domain.” AR 471. Dr. Netolicky also stated that
Swan was forced to quit jobs due to her impairments and her work history demonstrated
that she would not be able to maintain socially acceptable behavior in the long run. AR
470-71. This reflects reliance on Swan’s self-reports concerning her symptoms and
Swan contends, however, that subjective complaints are an important diagnostic
tool. While this is true, the ALJ expressly determined that her subjective complaints
were not credible. AR 19. An ALJ is free to discount a treating source who relies on
subjective complaints that lack credibility. See Julin v. Colvin, 826 F.3d 1082, 1089 (8th
Cir. 2016). Here, the ALJ found that Swan’s subjective complaints were not credible.
The ALJ based this conclusion on the fact that Swan’s activities of daily livings did not
support such extreme complaints. Swan was able to clean, run errands, prepare simple
meals, take care of pets, manage finances, take care of personal hygiene needs, spend
time with friend, go to church, read and watch television. AR 195-97, 214-15, 261-64;
see Buckner v. Astrue, 646 F.3d 549, 557 (8th Cir. 2011) (affirming the Commissioner’s
decision when the ALJ found that the claimant’s activities of daily living were inconsistent
with complaint of anxiety and depression). The ALJ considered the Polaski factors and
provided good reasons for discounting Swan’s subjective complaints.
For all of these reasons, I find that the ALJ properly discounted the rather-extreme
limitations offered by Drs. Netolicky and Perkins. Swan’s objection is overruled.
The RFC Determination
Swan next objects that the ALJ's RFC finding was not supported by substantial
evidence because no medical evidence supports the RFC. The crux of Swan’s argument
is that the RFC failed to include the work-related limitations offered by Drs. Netolicky
However, I have already found the ALJ properly discounted these
I further find the ALJ's RFC is supported by some medical evidence and,
therefore, is supported by substantial evidence in the record as a whole. The ALJ found
that Swan had the RFC to perform a full range of work at all exertional levels with the
following nonexertional limitations:
She can perform tasks learned in 30 days with simple work decisions, little
judgment and occasional work place changes. She can tolerate only
occasional interpersonal interaction. She is unable to work in close
proximity with others, such as she cannot stand next to or be involved with
others tasks or vice versa.
AR 17. As Judge Mahoney noted, these limitations incorporate some of the limitations
described by Drs. Netolicky and Perkins. Doc. No. 18 at 19. The ALJ also relied on
the opinions of two state agency medical consultants. AR 21, 68-69, 80-81. The fact
that the ALJ discounted the opinions of treating sources does not mean there is no medical
evidence supporting the RFC. See Buford v. Colvin, 824 F.3d 793, 797 (8th Cir. 2016)
(finding the ALJ’s residual functional capacity assessment was supported by substantial
evidence, noting that it was consistent with the limitations identified by the reviewing
consultant); Julin, 826 F.3d at 1089 (holding that some medical evidence supported the
ALJ's RFC when the ALJ adopted some of the limitations offered by the treating source
but declined to adopt those limitations that were based on the claimant’s subjective
Based on my de novo review, I find the RFC is supported by some medical
evidence. Swan’s objection is overruled.
For the reasons set forth herein:
Plaintiff Wendy L. Swan’s objections (Doc. No. 19) to the Report and
Recommendation are overruled.
Judge Mahoney’s Report and Recommendation (Doc. No. 18) is accepted
The Commissioner’s determination that Swan was not disabled is affirmed.
Judgment shall enter against Swan and in favor of the Commissioner.
IT IS SO ORDERED.
DATED this 17th day of August, 2017.
Leonard T. Strand, Chief Judge
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