Swanson v. Colvin

Filing 34

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. 1. The Commissioner's decision is AFFIRMED. 2. This case is DISMISSED with prejudice. 3. The Clerk is directed to enter judgment in favor of the Defendant. Signed by Judge Brian Morris on 11/16/2016. (ELL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

CV 15-42-BU-BMM

JENNIFER S. SWANSON,
Plaintiff,

MEMORANDUM
AND ORDER

vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Plaintiff Jennifer Swanson (Swanson) initiated this action under 42 U.S.C.
§ 405(g), seeking judicial review of the final decision of the Acting Commissioner
of Social Security (Commissioner), denying her application for disability benefits
and supplemental security income under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401-433, 1381-1383(f).
JURISDICTION
The Court has jurisdiction under 42 U.S.C. § 405(g).

BACKGROUND
Swanson alleges disability since June 2003, due to panic attack disorder,
anxiety, depression, and agoraphobia. Swanson’s claim was denied initially and on
reconsideration. Swanson appeared without counsel at an administrative hearing in
December 2011. The administrative law judge (ALJ) determined that Swanson did
not qualify for benefits under the Social Security Act. The Appeals Council
granted Swanson’s request for review and remanded the case for further
proceedings and a new decision.
Swanson appeared with counsel at the administrative hearing on remand.
The ALJ issued a second decision. The ALJ found that Swanson was not disabled
within the meaning of the Social Security Act. The ALJ concluded that Swanson
possessed the residual functional capacity to perform a reduced range of light work
that included the following activities: laundry folder, mail clerk, parking or toll
attendant, and food and beverage order clerk. The Appeals Council denied
Swanson’s request for review. This denial made the ALJ’s decision the agency’s
final decision for purposes of judicial review.
The Court referred the case to United States Magistrate Judge Jeremiah C.
Lynch for findings and recommendations. Judge Lynch entered his Findings and
Recommendation on August 29, 2016. (Doc. 33). Judge Lynch concluded that the

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Commissioner’s decision should be affirmed because it was supported by
substantial evidence and was free of legal error. Judge Lynch recommended that
this Court enter judgment in favor of the Commissioner. (Doc. 33 at 17). No
objections were filed.
STANDARD OF REVIEW
The Court reviews for clear error findings and recommendations to which no
objections are filed. McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc.,
656 F.2d 1309, 1313 (9th Cir. 1981).
DISCUSSION
Burnett argued that the Commissioner’s decision should be reversed
because the ALJ erred: 1) by not giving proper weight to the opinions of treating
nurse practitioner Rebecca White; 2) by not giving proper weight to the opinions of
treating physician Dr. Christina Quijano; and 3) by not providing clear and
convincing reasons for discrediting some of her testimony; and (4) by not finding
that her mental impairments satisfied the criteria for a presumptive disability under
Listing of Impairments 12.04 Part B.
A.

Nurse Practitioner White’s Opinions

Nurse practitioner White saw Swanson approximately twelve times between
January 2012 and August 2013. White opined in April 2013 that Swanson’s

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“anxiety and physical issues [made] it impossible for her to be employed” at that
time. (AR 872). White opined in June 2013 that Swanson had extreme anxiety
which could be paralyzing in her ability to perform even simple activities of daily
living. (AR 826). White opined in August 2013 that Swanson was “unable to
work due to her many acute anxiety issues and phobias.” (AR 1026).
White does not qualify as an acceptable medical source because there is no
evidence in the record that she was closely supervised by a physician or that her
findings were endorsed by a physician. Gomez v. Chater, 74 F.3d 967, 970 (9th
Cir. 1996). An ALJ may discount White’s opinions so long as the ALJ provides
germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir.
2012).
The ALJ considered White’s opinions as to the severity of Swanson’s
anxiety-related limitations, but gave them little weight because they were not
consistent with the other medical evidence in the record. The ALJ discussed
Swanson’s mental health treatment records at great length in his decision. (AR 4044). The ALJ provided a germane reasons for discounting White’s opinions. No
legal error occurred.

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B.

Dr. Quijano’s Opinions

Dr. Quijano saw Swanson once in January 2013. Dr. Quijano opined that
Swanson’s anxiety disorder was “causing severe disability and [was] interfering
with her ability to obtain employment.” (AR 878). The ALJ gave Dr. Quijano’s
opinions limited weight. (AR 51).
An ALJ may discount the opinions of a treating physician so long as the ALJ
provides “specific and legitimate reasons supported by substantial evidence in the
record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).
The ALJ provided specific and legitimate reasons for discounting Dr.
Quijano’s opinions. The ALJ noted that Dr. Quijano had seen Swanson on only
one occasion. The ALJ found that Dr. Quijano’s opinions were not supported by
the medical records of treating physicians Dr. Thomas Heriza and Dr. Howard
Layman who treated Swanson over an extended period of time. The records of
Drs. Heriza and Layman showed that Swanson’s symptoms were moderate, rather
than severe and disabling. (AR 51). No legal error occurred.
C.

Swanson’s Testimony

The ALJ determined that Swanson’s testimony of disabling anxiety-related
symptoms to be only partially credible. The ALJ discounted Swanson’s testimony
because: (1) the medical evidence in the record did not support Swanson’s

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testimony; (2) Swanson had not complied fully with the treatment regiment
prescribed by her health care providers; (3) Swanson’s testimony was not
consistent with statements she had made to her counselor; and (4) Swanson was
able to move from Montana to New York during the relevant period, and Swanson
was able to go on a three-week vacation in October 2009. The ALJ provided clear
and convincing reasons for discounting Swanson’s credibility. The ALJ did not err
in discounting Swanson’s testimony.
D.

Listing of Impairments 12.04 Part B

The ALJ determined that Swanson’s mental impairments did not meet or
equal the criteria for a presumptive disability under Listing of Impairments 12.04
Part B for affective disorders. The ALJ relied upon the testimony of medical
expert Dr. Michael Enright. Dr. Enright testified that Swanson could perform
simple, repetitive work activity on a sustained basis so long as: (1) she was not
required to understand and remember detailed instructions, and (2) she was
allowed to work independently with only intermittent contact with the general
public and supervisors. (AR 52). The ALJ’s determination was based on
substantial evidence. The ALJ provided clear and convincing reasons for
discounting Swanson’s testimony of disabling symptoms. No legal error occurred.

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CONCLUSION
The Court agrees with Judge Lynch that substantial evidence supports the
ALJ’s determination. I find no error in Judge Lynch’s Findings and
Recommendations and adopt them in full.
ORDER
1.

The Commissioner’s decision is AFFIRMED.

2.

This case is DISMISSED with prejudice.

3.

The Clerk is directed to enter judgment in favor of the Defendant.

DATED this 16th day of November, 2016.

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