Swenson v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER affirming decision of Commissioner. Signed by U.S. District Judge Karen E. Schreier on 7/18/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES A. SWENSON, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

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CIV. 12-04182-KES
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)
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) ORDER AFFIRMING THE DECISION
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OF THE COMMISSIONER
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Plaintiff, James A. Swenson, Jr., moves for reversal of the Commissioner
of Social Security’s decision denying his application for disability insurance
benefits under Title II of the Social Security Act (SSA) and for supplemental
security income under Title XVI of the SSA. The Commissioner opposes the
motion. The court affirms.
PROCEDURAL HISTORY
On June 4, 2008, James A. Swenson, Jr. filed a claim for disability
insurance benefits under Title II of the SSA and a claim for supplemental
security income under Title XVI of the SSA. AR 183- 194.1 Swenson alleged a
disability onset date of September 2, 2000. AR 183. The Social Security
Administration initially denied this claim on July 22, 2008, and again upon

1

record.

All citations to “AR” refer to the appropriate page of the administrative

reconsideration on January 13, 2009. AR 91- 92, 96, 100. On March 25, 2009,
Swenson requested a hearing before an Administrative Law Judge (ALJ). AR
111-12. On September 30, 2010, the ALJ held a hearing on Swenson’s claims.
AR 46-79. On October 12, 2010, the ALJ determined that Swenson was not
disabled at any time between September 2, 2000, and October 12, 2010 (the
date of the ALJ decision). AR 18-26.
On June 14, 2012, the Appeals Council denied Swenson’s timely request
for review. AR 6-10. Thus, the unfavorable October 12, 2010, decision became
the Commissioner’s final decision. AR 8. On October 23, 2012, Swenson filed a
timely civil action in this court, alleging that the ALJ’s decision was erroneous.
Docket 1.
FACTS
Born on May 20, 1958, Swenson was 42 years old on his alleged
disability onset date, September 2, 2000, and on his date last insured,
September 30, 2000. AR 18, 183. Swenson graduated from high school in 1976
and obtained some college education thereafter. AR 48-49, 232, 386. He did
not attend special education classes. AR 232.
Between 1976 and 2000, Swenson worked in framing and closing
houses, commercial construction, as a veterinarian assistant for his father, and
as a concrete mason. AR 49-50, 265. Swenson continued to work even after his
alleged disability onset date as an assistant for his father until some time in

2

2001 when his father passed away. AR 49, 206, 265. After his father died,
Swenson worked “some side cast jobs,” such as “helping out a couple of
farmers doing some odds and ends.” AR 52-53, 278. He reported, however, that
he has stopped these side jobs “for quite a while now.” AR 52.2
Even before the onset of his alleged disability, Swenson was unable to
generate a significant income, with $13,610 in 1982 being his highest year’s
income. AR 199-210. Swenson had no recorded income for the years 1993,
1994, 1995, 1996, and 2000, and in 2001, Swenson only earned $999. AR 199.
Swenson lives alone and completes his own chores. AR 49-53, 65, 247,
410. Swenson frequently goes on walks and visits friends. AR 67, 250, 411.
Shortly before the ALJ’s review, Swenson lifted and carried the “lighter” boxes
to help his friend move. AR 60-61.
I.

Depression/Anxiety
Swenson has experienced symptoms of anxiety since grade school and

has struggled with depression since 1980. AR 384, 394. Specifically, he has
had four major depressive episodes (occurring in 1980, 1983, 2001, and 2008),
and has daily panic attacks. AR 394.
Swenson has seen several medical professionals in regards to his mental
health. Dr. Michael Lastine, Swenson’s primary care physician, opined that

2

Dr. Lastine’s March 7, 2007, report is the latest record mentioning
Swenson working an “odd job.” AR 271.
3

Swenson’s anxiety neurosis and agoraphobia3 were so severe, “that he is
disabled from that alone,” and could not go out in public. AR 506. Tony
Sorensen, Psy.D., LP, Swenson’s primary therapist at Southwestern Medical
Center, diagnosed Swenson with major depressive disorder,4 panic disorder,5
agoraphobia, and alcohol dependence. Sorensen gave Swenson a global
assessment of functioning (GAF) rating of 47,6 but noted that his overall mental
condition was “fair-good.” AR 384-92, 482-91, 500-502. Dr. Jim Horgan, of
Southwestern Mental Health Center, diagnosed Swenson as having

3

Agoraphobia is the “fear of leaving home, of being alone, and of being in
a situation where one cannot suddenly leave or obtain help . . . the
agoraphobic may go to almost any lengths to avoid leaving home.” WebMD,
http://www.webmd.com/heartburn-gerd/achalasia (last visited July 9, 2014).
Swenson reports withdrawing from others and cancelling appointments to
avoid going out in public. AR 411.
4

Major Depressive Disorder, also known as Clinical Depression, is
“marked by a depressed mood most of the day, particularly in the morning, and
a loss of interest in normal activities and relationships.” WebMD,
http://www.webmd.com/heartburn-gerd/achalasia (last visited July 9, 2014).
5

A Panic Disorder is marked by “sudden attacks of fear and
nervousness, as well as physical symptoms such as sweating and a racing
heart.” WebMD, http://www.webmd.com/heartburn-gerd/achalasia (last
visited July 9, 2014). Swenson reports daily panic attacks. AR 394.
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The global assessment of functioning (GAF) ranks psychological, social,
and occupational functioning on a hypothetical continuum of mental illness
rating from zero to 100. A rating of 41-51 indicates serious symptoms or
serious impairments. A 51-60 rating indicates moderate symptoms and a
rating of 61-70 indicates mild symptoms. Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 32-34 (Text Rev. 4th ed. 2000).
4

Somatoform Disorder,7 and gave Swenson a GAF rating of 60. AR 413.
Additionally, Dr. Horgan opined that his anxiety was insignificant and
medication “may help [Swenson] enough to function well in some limited work
environments” and that “. . . given the right environment, [Dr. Horgan thought
Swenson] could accomplish some more tasks and be more productive.” AR 413.
Lastly, Dr. Viel, with Pipestone County Medical Center, reported that Swenson
was exhibiting symptoms “consistent with somebody with bipolar disorder.” AR
508. Swenson, however, has not received medication for bipolar disorder. AR
266, 508.
As of his hearing, Swenson was taking Amitiptyline and Lorazepam for
his anxiety and depression. AR 266; AR 63. Swenson testified that he thought
his medications were keeping him “fairly stable.” AR 64. Swenson also sees
Dr. Sorensen irregularly for therapy. AR 63.
II.

Cervical Degenerative Disc Disease
Swenson has experienced issues with Cervical Degenerative Disc

Disease8 since approximately September 2, 2000, stating that his back has

7

Somatoform Disorder is a mental disorder that causes patients to
experience symptoms of physical pain or illness that cannot be explained by a
general medical condition.
8

Cervical Degenerative Disc Disease, frequently developing in patients
that smoke and/or have done a lot of heavy lifting, occurs when the discs in
the spine that work as shock absorbers degenerate, causing pain. WebMD,
http://www.webmd.com/heartburn-gerd/achalasia (last visited July 9, 2014).
5

“[j]ust worn out through the years.” AR 53. Reported symptoms include lower
back pain, tightness in muscles, weakness in left arm, aching, tingling, and
numbness in neck. AR 399-403. Notes from Pipestone Family Chiropractic
report that Swenson’s condition is “chronic and persistent.” AR 400.
On September 22, 2000, Dr. Lastine x-rayed Swenson and observed mild
narrowing at C5-6. AR 291. On February 28, 2001, Dr. Lastine again x-rayed
Swenson’s lower back and observed evidence of early disc disease. AR 289.
Dr. Lastine noted that Swenson’s symptoms did not match up with his MRI
results. AR 286. An MRI report on February 21, 2003, showed “moderate disc
narrowing and mild disc desiccation with mild diffuse disc bulging” of C5-6. AR
328. All other discs appeared “unremarkable.” AR 328. MRI results on
March 26, 2007, also reported evidence of cervical disc disease. AR 295.
Dr. Lastine opined on September 10, 2010, however, that Swenson could not
use his arms or legs and that between the physical problems from cervical
degenerative disc disease and his psychological problems, Swenson was “100%
permanently disabled.” AR 506. On August 24, 2010, Dr. Viel reported that
Swenson’s disc degeneration was “anatomically mild.” AR 508.
For treatment, Swenson goes to the chiropractor. AR 399-403, 439-453.
Swenson also undergoes physical therapy. AR 54. Swenson’s medications for
his back include: meloxicam, baclofen, gabapentin, acetaminophen, and
ibroprofen. AR 266. Swenson reported that the physical therapy, medicine, and

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going to the chiropractor acted as a “band aid,” and only temporarily alleviated
his pain. AR 54. Dr. Lastine reported that the physical therapy seemed to be
improving or stabilizing Swenson’s condition. AR 282, 286, 465-67.

ALJ DECISION
On October 12, 2010, the ALJ issued a decision denying Swenson’s claim
for Title II disability benefits and for supplemental security income under Title
XVI of the SSA. AR 183-194. The ALJ analyzed Swenson’s claim utilizing a fivestep sequential evaluation procedure.9 AR 19-20. At step one, the ALJ
determined that Swenson had not engaged in substantial gainful activity since

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20 C.F.R. § 404.1520(a)(4)(i)-(v) provides that “(i) [a]t the first step, we
consider your work activity, if any. If you are doing substantial gainful activity,
we will find that you are not disabled. . . . (ii) At the second step, we consider
the medical severity of your impairment(s). If you do not have a severe
medically determinable physical or mental impairment that meets the duration
requirement of § 404.1509, or a combination of impairments that is severe and
meets the duration requirement, we will find that you are not disabled. . . .
(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings in appendix 1 of [subpart P of part 404 of this chapter] and meets the
duration requirement, we will find that you are disabled. . . . (iv) At the fourth
step, we consider our assessment of your residual functional capacity and your
past relevant work. If you can still do your past relevant work, we will find that
you are not disabled. . . . (v) At the fifth and last step, we consider our
assessment of your residual functional capacity and your age, education, and
work experience to see if you can make an adjustment to other work. If you can
make an adjustment to other work, we will find that you are not disabled. If
you cannot make an adjustment to other work, we will find that you are
disabled.”
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September 2, 2000 (Swenson’s alleged onset date). AR 20. Specifically, the ALJ
assessed that Swenson’s work for his father as a veterinary assistant after the
onset of his alleged disability date did not rise to the level of substantial gainful
activity.
At step two, the ALJ determined that Swenson had medicallydeterminable severe impairments of cervical degenerative disc disease and
depression/anxiety, non-severe impairments of gastric reflux, pulmonary
emphysema and abnormal liver functions, and that Swenson’s history with
alcohol was immaterial. AR 20-21.
At step three, the ALJ determined that Swenson’s impairments or
combination of impairments did not meet one of the listed impairments in 20
CFR part 404, Subpart P, Appendix 1.10 AR 21-22. In finding Swenson’s
impairments did not meet 20 C.F.R. part 404, subpart P, appendix 1, the ALJ
considered that the MRI findings do not reveal the requisite nerve root or spinal
cord compromise. The ALJ also concluded that Swenson’s mental impairments
did not restrict his daily living. Swenson had no marked difficulties in
maintaining social functioning, maintaining concentration, persistence, or

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20 C.F.R. part 404, Subpart P, Appendix 1 lists the following
impairments: Growth, musculoskeletal system, special senses and speech,
respiratory system, cardiovascular system, digestive system, genitourinary,
hematological disorders, skin disorders, endocrine system, impairments that
affect multiple body systems, neurological, mental disorders, malignant
neoplastic diseases, immune system disorders. 20 C.F.R. § 404(subpart
p)(appendix1)(i)-(xvi).
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pace, or repeated episodes of decompensation. While Swenson has mildmoderate difficulties with regards to most of these areas, he lived alone,
completed his household chores, exercised, visited friends, completed small
duties for friends and family, and attended family functions.
The ALJ further determined that Swenson has the residual functional
capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b). AR 22-24. The ALJ based his RFC determination on Dr. Lastine’s
examination revealing Swenson had normal upper extremity range of motion;
medical opinions noting that Swenson’s cervical degenerative disc disease was
anatomically mild and that chiropractic treatment was helping; and
Dr. Sorensen’s evaluation of Swenson’s ability to work. The ALJ also
considered Swenson’s testimony that he does his own chores, visits friends,
and has worked on the side.
At step four, the ALJ determined that Swenson is unable to perform any
past relevant work because of the physical demand of cement and veterinarian
work. AR 24.
At step five, the ALJ determined that considering Swenson’s age,
education, and RFC, Swenson can perform a significant number of jobs that
exist in the national economy such as working as a utility worker, assembler of
small products, or machine cutter. AR 24-25, 77.

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Based on these findings, the ALJ determined that Swenson was “not
disabled under 216(i) and 223(d) of the Social Security Act.” AR 25.
STANDARD OF REVIEW
An ALJ’s decision must be upheld if it is supported by substantial
evidence in the record as a whole. 42 U.S.C. § 405(g). “Substantial evidence is
‘less than a preponderance, but is enough that a reasonable mind would find it
adequate to support the Commissioner's conclusion.’ ” Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F.3d 897, 898
(8th Cir. 2006)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971)
(reasoning that substantial evidence means “more than a mere scintilla”). In
determining whether substantial evidence supports the ALJ’s decision, the
court considers evidence that both supports and detracts from the ALJ’s
decision. Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010) (internal citation
omitted). As long as substantial evidence supports the decision, the court may
not reverse it merely because substantial evidence exists in the record that
would support a contrary outcome or because the court would have determined
the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002)
(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner’s decision is supported by
substantial evidence, the court reviews the entire administrative record and
considers six factors: (1) the ALJ’s credibility determinations; (2) the claimant’s

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vocational factors; (3) medical evidence from treating and consulting
physicians; (4) the claimant’s subjective complaints relating to activities and
impairments; (5) any third-party corroboration of claimant’s impairments; and
(6) a vocational expert’s testimony based on proper hypothetical questions
setting forth the claimant’s impairment(s). Stewart v. Sec’y of Health & Human
Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d
1183, 1184-85 (8th Cir. 1989)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commission’s construction of
the Social Security Act. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir.
1992).
DISCUSSION
Swenson argues that the ALJ erred in determining his RFC by
discounting his treating physician’s opinions and giving greater weight to the
opinions of non-examining doctors. Swenson further disputes the ALJ’s finding
that there were a significant number of available jobs in the national economy.
I.

Introducing New Evidence

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In his complaint (Docket 1) and memorandum in opposition to dismissal
(Docket 11), Swenson asked the court to consider the following new evidence in
deciding his appeal: a medical opinion by Dr. Lastine on March 28, 2012,
stating that Swenson “will not be able to perform any employment in the
foreseeable future” (Docket 1-1); six records from Southwestern Mental Health
Center dated from June 22, 2011–May 21, 2012, all consistently stating that
Swenson had psychological, physical, interpersonal, daily life and occupational
impairments (Docket 1-2); and a February 11, 2013, opinion by Dr. Lastine
stating that Swenson has been “disabled” since 2007 (Docket 11-1). Swenson
asserted that the new evidence was the basis of his appeal and, in fact,
admitted that the ALJ’s decision was correct based on the evidence presented
at the hearing. Docket 10. His brief, however, does not address or make any
arguments with regard to any of the new evidence above. Docket 19. Swenson
has waived any argument regarding the new evidence by failing to address the
new evidence on appeal. See Cubillos v. Holder, 565 F.3d 1054, 1058 (8th Cir.
2009).
Even if the argument is not waived, the court only considers new
evidence if it is material and there is good cause for not bringing the evidence
forward earlier. See 42 U.S.C. § 405(g). Evidence is not material unless it is
“non-cumulative, relevant, and probative of the claimant’s condition for the time
period for which benefits were denied.” Hepp v. Astrue, 511 F.3d 798, 808 (8th

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Cir. 2008) (emphasis added). And a party does not show good cause based on a
report that was made after an ALJ hearing when the mental deficiency that is
the subject of the new report existed before the ALJ hearing. Mouser v. Astrue,
545 F.3d 634, 637 (8th Cir. 2008).
The new evidence here is not relevant to Swenson’s condition prior to or
at the time of the ALJ’s decision because it covers a time period after
Swenson’s benefits were denied. Docket 1-1; Docket 1-2; Docket 11-1.
Additionally, Swenson’s mental condition, the subject of these reports, existed
before the ALJ hearing. Accordingly, the court refuses to consider the new
evidence.

II.

RFC Determination
Swenson argues that the RFC determination was erroneous because the

ALJ improperly discounted Dr. Lastine’s opinion. Swenson specifically argues
that Dr. Lastine’s opinion should be awarded controlling weight because
Dr. Lastine was his primary examining physician and Dr. Lastine’s opinions on
the severity of Swenson’s condition were consistent.
A treating physician’s opinion on the nature and severity of the
claimant’s impairments is entitled to controlling weight if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20

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C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (2006). “A treating physician’s opinion
‘do[es] not automatically control, since the record must be evaluated as a
whole.’ ” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Bentley
v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)). An ALJ may “discount or even
disregard the opinion of a treating physician where . . . a treating physician
renders inconsistent opinions that undermine the credibility of such opinions.”
Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (citations omitted). The
ALJ must always give good reasons for the weight afforded to a treating
physician’s evaluation. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
In the present case, the ALJ did not give Dr. Lastine’s opinions
concerning Swenson’s occupational limitations controlling weight because the
opinions were conclusory, inconsistent with substantial evidence in the record,
and outside the doctor’s area of expertise. AR 22-24. Dr. Lastine stated that
Swenson was “100% permanently disabled,” that he could not go into public
because of his anxiety, and that he could not use his arms or legs for any
length of time. AR 506. The ALJ determined that Dr. Lastine’s opinions lacked
foundation because they failed to “enumerate the physical findings relied on.”
AR 23. Moreover, the ALJ noted that Dr. Lastine’s opinions were inconsistent
with each other and that there was no substantial support in the record to
validate Dr. Lastine’s opinion that Swenson was severely disabled. Id. Further,

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the ALJ stated that Dr. Lastine’s opinion “appears to rest at least in part on an
assessment of claimant’s psychological impairment, which is outside the [sic]
Dr. Lastine’s area of expertise.” Id.
The ALJ was correct in finding that there are some inconsistencies in
Dr. Lastine’s opinions. Inconsistent with his September 10, 2010, opinion that
Swenson’s condition had “progressively worsened over the last 10 to 15 years,”
AR 506, is Dr. Lastine’s report in 2002 that the pain “will come and go,” that
therapy had been successful, id., that there were “marked improvements in
[Swenson’s] back and neck,” AR 286, his 2003 report, that the patient’s
cervical disc disease had “somewhat progressed,” AR 282, and his 2009 report,
that his condition was “stable” and there were “no major change[s] from
before,” AR 465-67. Furthermore, Dr. Lastine reported that the patient’s
symptoms do not match up with the MRI results. AR 286. Inconsistent with
Dr. Lastine’s opinion that Swenson is unable to do any kind of work because of
his arms and legs, AR 506, Dr. Lastine stated that, “as far as work goes, he can
be the best judge of that himself, but no rush on that . . . .” AR 289.
Additionally, the physical examination showed Swenson’s condition was
normal. AR 281. Therefore, Dr. Lastine’s opinions contain internal
inconsistencies and are somewhat conclusory.
Beyond that, Dr. Lastine’s opinions are inconsistent with other evidence
in the record. MRI results show Swenson’s condition was mild or

15

“unremarkable.” AR 328. Dr. Viel reported that Swenson’s problems were
“anatomically mild.” AR 508. Additionally, Swenson is able to live alone, do his
own chores, socialize, and had done veterinarian work and work on the side for
farmers after his alleged onset date.11 AR 49-53. Thus, Dr. Lastine’s opinions
about the severity of Swenson’s physical condition are inconsistent and lack
support in the record.
Turning specifically to Dr. Lastine’s impressions of Swenson’s mental
health, the court “generally give[s] more weight to the opinion of a specialist
about medical issues related to his or her area of specialty than to the opinion
of a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5).
Dr. Lastine opined that Swenson’s mental health was disabling. AR 506.
Dr. Lastine, however, a primary care physician, is not a mental health
specialist.12 Dr. Sorensen, Psy.D., who is a licensed psychologist and

11

Swenson argues that the ALJ should not have considered the following
when determining his RFC: he lives alone, does his own chores, helped a friend
move, and has worked for his father and for various farmers. While chores and
“insignificant duties” are not in themselves indications that a person can
engage in substantial gainful activity, such findings may indicate that an
individual is capable of greater functioning than he/she alleges. See 20 C.F.R.
§ 404.1571. The ALJ properly considered chores and make-work to support
MRI results reporting degeneration was mild, Dr. Viel’s report that Swenson’s
back problems were “anatomically mild,” and Dr. Lastine’s reports stating that
Swenson’s physical was normal. AR 281, 328, 508.
12

The following are mental health specialists: psychologists,
psychiatrists, psychotherapists, psychoanalysts, and cognitive behavioral
therapists. WebMD, http://www.webmd.com/heartburn-gerd/achalasia (last
16

Swenson’s primary therapist, noted that Swenson’s mental health may cause
him to have poor attendance at work, but that Swenson’s mental health was
“fair-good” and would not preclude him from working. AR 500-02. Dr. Horgan,
also a licensed psychologist, opined that “[t]here doesn’t seem to be a
significant amount of anxiety going on” and that he would be able to “function
well in some limited work environments.” AR 413. Because Swenson was also
examined by mental health specialists, the ALJ did not err in giving more
weight to both specialists’ opinions. Both of these opinions substantially
support the ALJ’s determination of Swenson’s RFC.
III.

Job Availability
Swenson also challenges the ALJ’s finding that there are available jobs

for him in the national economy. Specifically, Swenson alleges that the ALJ
gave no weight to the vocational expert’s answers to the second and third
hypothetical questions posed during the hearing. The vocational expert
answered that there were no jobs available for persons who would be off task
for 25 percent of the workday or who would need to take additional 15-minute
breaks. AR 78.
The opinion of a vocational expert has no value where the hypothetical
question posed did not have support in the record. Brenner v. Schweiker, 711

visited July 9, 2014).
17

F.2d 96, 99 (8th Cir. 1983). The hypothetical question must precisely set forth
the claimant’s condition or it cannot be used to assess job availability. Id.
Although the ALJ did not specifically address the vocational expert’s
answer that there were no jobs available for someone who would be off task 25
percent of the day or need additional 15-minute breaks, the record does not
show that Swenson would need multiple breaks or would be off task for 25
percent of the day. Rather, both of Swenson’s examining mental health
specialists suggested otherwise. Dr. Sorensen noted that Swenson had
satisfactory ability to maintain attention and an “unlimited or very good” ability
to “perform at a consistent pace without an unreasonable number and length
of rest periods.” AR 502. Dr. Sorensen also noted that Swenson could
satisfactorily maintain concentration while working, work alongside others,
respond to changes in a routine work setting, carry out simple instructions,
and deal with normal work stress. Id. Dr. Horgan similarly determined that
with the right medication, Swenson could perform certain jobs well. AR 413.
The second and third hypothetical questions, therefore, did not accurately set
forth Swenson’s condition.
On the other hand, only the first hypothetical question asked by the ALJ
(asking whether there were jobs available for someone of Swenson’s age and
background where posturals are occasional, one does not need to work with
the public, and there is limited co-worker interaction) fully and accurately

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addressed Swenson’s condition. The vocational expert testified that there were
numerous jobs for individuals who could only do light work, could not work
with the public, and needed limited co-worker interaction. AR 77. Substantial
evidence in the record shows that these limitations accurately reflect
Swenson’s condition. Thus, the ALJ appropriately considered the part of the
vocational expert’s testimony that was supported by the record. Therefore, the
court will not disturb the ALJ’s finding regarding job availability.
CONCLUSION
Following a careful review of the record, substantial evidence supports
the ALJ’s decision denying benefits. The ALJ did not err in giving Swenson’s
treating physician’s opinion less weight. Additionally, substantial evidence
supports the ALJ’s determination that there are a substantial number of jobs
available for Swenson in the national economy. Therefore, substantial evidence
supports the ALJ’s determination that Swenson was not disabled during the
applicable date range. Accordingly, it is
ORDERED that the motion to reverse the decision of the Commissioner is
denied, and the decision of the Commissioner is affirmed.
Dated July 18, 2014.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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