Tammy J. Swigert v. Michael J. Astrue

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2426
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Tammy J. Swigert, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Michael J. Astrue, Commissioner of *
Social Security, * [UNPUBLISHED]
*
Defendant - Appellee. *
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Submitted: December 15, 2006
Filed: March 28, 2007
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Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
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PER CURIAM.
Tammy J. Swigert applied for social security disability and supplemental
security income benefits, alleging a combination of disabling impairments including
Type II diabetes, liver disease, hypertension, back pain, severe fatigue, severe acid
reflux causing nausea, depression, and other mental disorders. After a hearing, the
Commissioner’s administrative law judge found that Ms. Swigert’s diabetes, obesity,
and back disorder are severe impairments, her other physical impairments are not
severe, her mental impairments cause no more than slight limitations in the four
relevant functional areas of daily living, and her subjective complaints are not fully
credible. Crediting the testimony of a vocational expert, the ALJ found that Ms.
Swigert is unable to perform her past relevant work but retains the residual functional
capacity to perform the unskilled sedentary work of food and beverage order clerk and
is therefore not disabled. After the Commissioner’s Appeals Council denied Ms.
Swigert’s administrative appeal, she commenced this action seeking judicial review
of the agency’s final adverse action. The district court1 granted summary judgment
in favor of the Commissioner, concluding that the decision is supported by substantial
evidence on the administrative record as a whole. Ms. Swigert appeals. We affirm.
On appeal, Ms. Swigert primarily argues that the ALJ erred in failing to afford
controlling weight to the opinion of her primary treating physician that her
impairments make rest “necessary at intervals and durations in Ms. Swigert’s
discretion” during an eight-hour workday. The vocational expert testified that a
person so limited is unable to work. The physician’s opinion appears in a Medical
Source Statement he completed at the request of Ms. Swigert’s attorney. The form
asked, “Would rest be medically helpful to necessary during an 8-hour workday in
coping with symptoms,” and if so, at what intervals and for what time periods. The
physician checked the “Yes” box and wrote “Pt. discretion” beneath the interval and
time period questions. The physician’s conclusory opinion that this amount of rest is
necessary (as opposed to helpful) is unsupported by the extensive medical evidence
in the record. Therefore, many of the physician’s limitations, but not this disabling
rest limitation, were included in the ALJ’s residual functional capacity findings. This
was not error. A treating physician’s checkmarks on an MSS form may be discounted
if they are contradicted by other objective medical evidence in the record. See Stormo
v. Barnhart, 377 F.3d 801, 805-06 (8th Cir. 2004); Hogan v. Apfel, 239 F.3d 958, 961
(8th Cir. 2001); Social Security Ruling 96-2p, Titles II and XVI: Giving Controlling
Weight to Treating Source Medical Opinions (July 2, 1996).
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
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Ms. Swigert further argues that the ALJ gave excessive weight to the opinions
of a one-time consultative examiner, erred in failing to find her depression and mental
disorders to be severe mental impairments, and did not properly evaluate the
credibility of Ms. Swigert’s subjective complaints of pain, fatigue, and depression.
After careful review of the record, we agree with the district court that these
contentions must be rejected because substantial evidence on the administrative record
as a whole supports the ALJ’s findings and analysis.
The judgment of the district court is affirmed.
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