Poppe v. Commissioner of Social Security
REPORT AND RECOMMENDATION that the district court affirm the decision of the Social Security Administration and enter judgment in favor of the Commissioner re 3 Complaint filed by Angela S Poppe. Objections to R&R due by 7/26/2017. Signed by Magistrate Judge Kelly Mahoney on 7/12/2017. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
ANGELA S. POPPE,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
REPORT AND RECOMMENDATION
Plaintiff Angela Poppe seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for
disability insurance benefits (DI) under Title II of the Social Security Act, 42 U.S.C.
§§ 401-434, and supplemental security income (SSI) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1385. Poppe argues that the administrative law judge
(ALJ), Eric S. Basse, erred in determining residual functioning capacity (RFC) because
he discredited some of Poppe’s statements, he did not give sufficient weight to the RFC
opinions of the treating psychiatric nurse practitioner and the consulting examiner, and
he did not obtain additional RFC opinions. I recommend affirming the ALJ’s decision.
Commissioner Berryhill is substituted for her predecessor in accordance with Federal Rule of
Civil Procedure 25(d).
Poppe suffers from migraines and mental health problems, including bipolar
affective disorder, anxiety disorder, mood disorder, and attention deficit hyperactivity
disorder. AR 11.2 She lives alone with her elementary-school-aged daughter. AR 42.
She does not work, although she has past employment as a cook helper, telemarketer,
and recreational aide. AR 31-32, 286. Her sporadic work history made her eligible for
DI benefits for disability established on or before December 31, 2012. AR 9, 236; Doc.
In January 2013, Poppe started seeing nurse practitioner Amber Edwards (NP
Edwards) consistently for psychiatric treatment. AR 312-15. In conjunction with that
treatment, she began therapy with social worker Mona Krugger, and later, in September
2014, with mental health counselor Scott Dickinson. AR 318-19, 419. For physical
ailments, she sees various practitioners at a clinic, although she primarily sees nurse
practitioner Janel Thompson (NP Thompson). AR 560-98.
In April 2013, Poppe filed concurrent applications for DI and SSI benefits, alleging
a disability onset date of January 21, 2012. AR 9, 83-84, 95-96, 203-18. At the
Commissioner’s request, in August 2013, Poppe had a consultative examination with
psychologist Dr. Paul Conditt, who assessed Poppe’s mental RFC.3 AR 86, 98, 526529. He opined that she had no trouble understanding instructions but moderate to severe
impairment carrying out instructions and maintaining concentration and pace. AR 52829. He also found that she was moderately impaired in her ability to use good judgment
“AR” refers to the administrative record below.
RFC is “‘what the claimant can still do’ despite his or her physical or mental limitations.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (quoting Bradshaw v. Heckler, 810 F.2d
786, 790 (8th Cir. 1987)).
and respond to workplace change and severely impaired in her ability to interact
appropriately with others. AR 529. He found that she could handle funds relatively well
when not manic. Id.
After receiving Dr. Conditt’s opinion, the Commissioner denied Poppe’s DI and
SSI applications initially and on reconsideration. AR 83-130. As part of those reviews,
state agency medical consultants Dr. David Christiansen and Dr. Myrna Tashner
evaluated Poppe’s mental RFC. AR 89-91, 101-03, 113-16, 125-28. They found that
she suffered from no severe or marked limitations but that she was moderately limited in
the following areas: maintaining concentration and pace; understanding, remembering,
and carrying out detailed instructions; performing activities within a schedule; sustaining
an ordinary routine without special supervision; interacting with coworkers and the
general public; and responding to changes in the workplace. Id. They found she was
not significantly limited in her ability to make simple work-related decisions; respond to
criticism; or understand, remember, and carry out simple instructions. Id. No state
agency medical consultant evaluated Poppe’s physical RFC because her migraines were
not considered a severe impairment. AR 86-87, 93, 98, 104-05, 111, 117, 123, 129.
Poppe requested a hearing before an ALJ. AR 155. Prior to the hearing, she
obtained a reevaluation from Dr. Conditt, who revised his diagnosis4 and his opinion of
Poppe’s global assessment of functioning (GAF) score, but not his RFC opinion. AR
525-529. Poppe also submitted as evidence a mental RFC opinion from NP Edwards,
which Mr. Dickinson concurred in.5 AR 403-08. NP Edwards opined that Poppe had
Dr. Conditt’s diagnosis of bipolar disorder changed from “most recent episode manic,
moderate” to “most recent depressed, severe, with psychotic features,” and his diagnosis for
anxiety disorder changed from “social anxiety and OCD features” to only “OCD features.”
For simplicity’s sake, I refer to this opinion throughout as belonging to NP Edwards.
no or mild limitations understanding, remembering, and carrying out simple and detailed
instructions; maintaining attention and concentration; making simple work decisions;
responding to criticism and change; interacting with the public; and getting along with
coworkers. AR 406-07. NP Edwards found that Poppe had no severe limitations and
that she had marked limitations in only three areas: performing activities within a
schedule, sustaining an ordinary routine without special supervision, and working in
coordination with others without being distracted by them. AR 406. Overall, she opined
that Poppe had no restrictions in her activities of daily living or in maintaining social
functioning and that she would only seldom suffer deficiencies of concentration,
persistence, or pace. AR 407.
On January 23, 2015, the ALJ held a video hearing at which Poppe and a
vocational expert testified. AR 24-26. The ALJ issued a written opinion following the
familiar five-step process outlined in the regulations.6 AR 9-19. The ALJ determined
that Poppe suffered from several severe impairments, including migraines, bipolar
affective disorder, anxiety disorder, and attention deficit hyperactivity disorder. AR 11.
To evaluate whether Poppe’s impairments prevented her from performing her past work
or other work, the ALJ determined Poppe’s RFC:
[Poppe] has the [RFC] to perform a full range of work . . . with the
following nonexertional limitations: limited to simple, routine, tasks;
occasional interactions with the public and coworkers but only with small
“The five-part test is whether the claimant is (1) currently employed and (2) severely impaired;
(3) whether the impairment is or approximates a listed impairment; (4) whether the claimant can
perform past relevant work; and if not, (5) whether the claimant can perform any other kind of
work.” King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009); see also 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4) (2016). The burden of persuasion always lies with the
claimant to prove disability, but during the fifth step, the burden of production shifts to the
Commissioner to demonstrate “that the claimant retains the RFC to do other kinds of work and
. . . that other work exists.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004)).
groups of people; essentially limited to performing solitary work tasks at
the work site; occasional interaction with supervisors and no production
rate pace; also no more than a moderate noise level; no bright lighting
(typical office lighting is managed); and avoid concentrated exposure to
pulmonary irritants (such as odors).
AR 13. The ALJ considered the medical opinions in the record, assigning partial weight
to NP Edwards’s opinion, partial weight to Dr. Conditt’s opinion, and substantial weight
to Dr. Tashner’s and Dr. Christiansen’s opinions. AR 16-17. The ALJ did not fully
credit Poppe’s statements. AR 14-15. The ALJ found that Poppe could not perform her
past work but could do other work and therefore, that she was not disabled. AR 17-19.
Poppe appealed the ALJ’s decision, and the Appeals Council denied her request
for review on May 20, 2016. AR 1-3. The ALJ’s decision is thus the final decision of
the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481 (2016). Poppe filed a timely
complaint in this court, seeking judicial review of the Commissioner’s decision (Doc. 3).
See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 14, 16), and the
Honorable Leonard T. Strand, Chief Judge of the United States District Court for the
Northern District of Iowa, referred this case to me for a Report and Recommendation.
A court must affirm the ALJ’s decision if it “is supported by substantial evidence
in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also
42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that
a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d
at 707. The court “do[es] not reweigh the evidence or review the factual record de
novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the
evidence, “it is possible to draw two inconsistent positions from the evidence and one of
those positions represents the [ALJ’s] findings, [the court] must affirm the decision.”
Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
Poppe challenges only the ALJ’s RFC determination, arguing that the ALJ erred
in evaluating her credibility, that the ALJ should have given more weight to the RFC
opinions of NP Edwards and Dr. Conditt, and that some medical evidence does not
support the resulting RFC determination. Keeping the substantial-evidence standard in
mind, I address each of Poppe’s arguments in turn.
Poppe argues that the ALJ improperly discredited some of her subjective
complaints. Poppe testified that a few times a week, she gets a migraine so severe that
she is unable to function for at least two hours and must lie down. AR 35, 39, 45. She
testified that prescription medication that she is supposed to take twice a day, regardless
of any symptoms, helps prevent migraines “for the most part” but that she sometimes
forgets to take it. AR 33-34, 41. She testified that she suffers from mood swings and
that she sometimes feels so depressed that she does not want to get out of bed, to cook,
to clean, or to shower. AR 44, 51. She also testified that she would be unable to work
due to her limitations in memory, concentration, and interacting with other people. AR
When evaluating the credibility of a claimant’s subjective complaints—including
pain or nervousness—the ALJ must consider the factors set forth in Polaski v. Heckler:
“(1) the claimant’s daily activities; (2) the duration, frequency and intensity of the pain;
(3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating
factors; and (5) functional restrictions.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir.
1998); accord Polaski, 739 F.2d 1320, 1321-22 (8th Cir. 1984), vacated, 476 U.S. 1167
(1986), reinstated, 7 804 F.2d 456 (8th Cir. 1986). “Other relevant factors include the
claimant’s relevant work history and the absence of objective medical evidence to support
the complaints.” Black, 143 F.3d at 386. The ALJ may not discredit the claimant’s
allegations based solely on the absence of objective medical evidence, but the ALJ may
rest his credibility finding on “objective medical evidence to the contrary,” Ramirez v.
Barnhart, 292 F.3d 576, 581 (8th Cir. 2002); or “inconsistencies in the record as a
whole,” Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993). Courts must “defer
to an ALJ’s credibility finding as long as the ‘ALJ explicitly discredits a claimant’s
testimony and gives a good reason for doing so.’” Schultz v. Astrue, 479 F.3d 979, 983
(8th Cir. 2007) (quoting Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001)).
The ALJ found that Poppe’s “statements concerning the intensity, persistence and
limiting effects of [her] symptoms [we]re not entirely credible” for several reasons. AR
14. The ALJ noted that Poppe’s daily activities suggested a greater ability to focus and
function than she claimed: Poppe lives alone with her minor child and walks with her to
and from school every day (indeed, Poppe testified that she is always able to get out of
bed, no matter how depressed she is feeling, to walk her child to school). AR 16, 4243, 55. She volunteers every other week at her child’s school, where the kids read to
her. AR 8, 476. She cooks and cleans. AR 16, 44-45. She does not drive, but that is
because of an operating while intoxicated charge, not due to her impairments. AR 37,
244. She grocery shops accompanied by the person who has driven her to the store. AR
The court did not explicitly say that it was reinstating the original Polaski opinion, but the
Eighth Circuit has recognized that it “effectively reinstat[ed]” Polaski. Jones v. Callahan, 122
F.3d 1148, 1151 n.3 (8th Cir. 1997).
38. During the hearing, Poppe initially suggested that she never goes to bars, but later
admitted that she patronizes bars occasionally. AR 12, 53-54, 61.
The ALJ also noted inconsistencies between Poppe’s statements and the treatment
notes. NP Edwards observed in October 2013 that Poppe interacted well with others in
group settings. AR 16, 476. NP Edwards opined that Poppe’s stated difficulties working
with others would not prevent her from holding a job, as long as she continued treatment.
Id. Treatment notes also reflect that Poppe’s mood, concentration, and memory are
occasionally normal (likely due to medication). AR 14, 308-09, 323, 329, 336, 341-42,
437, 447, 506, 520, 523. With regard to Poppe’s migraines, treatment notes reflect that
once prescribed Topamax in December 2013, she no longer reported having trouble with
migraines and said that the medication helped greatly. AR 15, 462, 522, 547, 550, 553,
560, 562, 565, 572, 575, 585.
The ALJ also relied on inconsistencies between the record and Poppe’s testimony
that she is unable to have relationships with people. AR 15-16, 48-49, 56. The ALJ
pointed to evidence that Poppe had spent a good Easter with her family; that she had
twice seen her father; that she had befriended the mother of one of her daughter’s
classmates; and that she had dated a man “for awhile [sic],” introduced him to her
daughter, and considered moving in with him. AR 15-16, 439, 443, 449, 492. The ALJ
also relied on evidence that Poppe had once visited a former coworker, but as Poppe
points out, that encounter ended with the coworker calling the police because of Poppe’s
behavior. AR 16, 443. Similarly, the ALJ pointed to several of Poppe’s strictly sexual
relationships with men (AR 15, AR 437, 470, 488, 490), but the parties agree that this
evidence is not inconsistent with Poppe’s testimony (Doc. 14 at 20-21; Doc. 16 at 23).
Nevertheless, substantial evidence supports the ALJ’s determination that Poppe is able to
have relationships with some people, which is somewhat inconsistent with her testimony.
Moreover, the ALJ’s RFC determination provides that Poppe must perform work tasks
alone (AR 13), so it does not seem that the ALJ fully discredited Poppe’s testimony
regarding her difficulties interacting with other people.
The ALJ also found that some of Poppe’s limitations “may be due to lifestyle
choices” (AR 15), which is an appropriate factor to consider. See Shelton v. Chater, 87
F.3d 992, 996 (8th Cir. 1996) (ALJ relied in part on limitations being “the result of
lifestyle choices” and “not medically necessitated”); see also Halverson v. Astrue, 600
F.3d 922, 932-33 (8th Cir. 2010) (ALJ relied in part on claimant’s “alternative motives”
for limitations). In January 2013, NP Edwards opined that some of Poppe’s manic
symptoms may be the result of her excessive caffeine intake. AR 315. In January 2014,
Poppe told NP Edwards that lack of cable television due to insufficient funds “plays a
part in [her] depression.” AR 458. In July 2014, Poppe admitted to NP Edwards that
she sleeps all day when she has nothing else to do but sleeps less on days she has events
scheduled. AR 432.
Finally, the ALJ relied on Poppe’s failure to obtain mental health treatment
consistently prior to January 2013 and her occasional failure to take her mental health
medications. AR 14-15. Although a failure to seek treatment or to take prescribed
medications may support a finding that the claimant’s symptoms are not as severe as
claimed, the ALJ must consider possible reasons the claimant failed to seek or follow
treatment before discrediting a claimant on that basis. Social Security Ruling (SSR) 967P, 61 Fed. Reg. 34483, 34487 (July 2, 1996) (in effect when Poppe filed her claim and
the ALJ issued his decision); SSR 16-3P, 81 Fed. Reg. 14166, 14170 (Mar. 16, 2016)
(superseding SSR 96-7P); see also Watkins v. Astrue, 414 F. App’x 894, 898 (8th Cir.
2011) (per curiam) (Colloton, J., concurring). Here, as noted by Poppe, there is no
evidence that the ALJ did so: the ALJ did not question Poppe on these issues, and the
ALJ’s opinion does not address whether Poppe’s lack of treatment was excused.8
Nevertheless, any error was harmless. Other reasons support the ALJ’s credibility
determination such that the ALJ would not have decided credibility differently absent
consideration of Poppe’s lack of treatment. See, e.g., King v. Colvin, No. 13-CV-3039LTS, 2014 WL 1344194, at *14 (N.D. Iowa Apr. 4, 2014); cf. Watkins, 414 F. App’x
at 896-97 (majority opinion) (remand required when ALJ “relied primarily on
[claimant’s] noncompliance with treatment recommendations” to discredit his mental
health symptoms and did not address whether such failure was justified (emphasis
In sum, the ALJ gave good reasons for his credibility determination, which was
supported by substantial evidence. Poppe points to contrary evidence in the record, but
it is not for this court to reweigh the evidence. I recommend that the ALJ’s credibility
determination be affirmed.
B. Weight Given to Medical Opinions
Poppe argues that the ALJ erred in assigning only partial weight to the RFC
assessments of NP Edwards and Dr. Conditt. When determining a claimant’s RFC, the
ALJ considers medical opinions from acceptable medical sources “together with the rest
of the relevant evidence.”
20 C.F.R. §§ 404.1527(a)(2), (b), 416.927(a)(2), (b);
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844,
There is some support in the record that Poppe failed to take her mental health medications due
to a lack of health insurance and inability to afford medications, a dislike of side effects, and an
inability to remember to take her medications.
5869, 5880 (Jan. 18, 2017) (to be codified at 20 C.F.R. pts. 404, 416).9 The ALJ must
also consider opinions from other, non-acceptable medical sources that assess a claimant’s
ability to function in the workplace. SSR 06-03p, 71 Fed. Reg. 45593, 45594-95 (Aug.
9, 2006) (clarifying that opinions from medical sources who are not “acceptable” must
be considered under the old rules); 82 Fed. Reg. at 5844-45, 5870-71, 5881 (new rules
incorporate policies found in SSR 06-03p). The ALJ considers the following factors to
determine the weight to assign an opinion assessing a claimant’s RFC:
(1) whether the source has examined the claimant; (2) the length, nature,
and extent of the treatment relationship and the frequency of examination;
(3) the extent to which the relevant evidence, “particularly medical signs
and laboratory findings,” supports the opinion; (4) the extent to which the
opinion is consistent with the record as a whole; (5) whether the opinion
is related to the source’s area of specialty; and (6) other factors “which
tend to support or contradict the opinion.”
Owen v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008) (quoting 20 C.F.R. §§ 404.1527(d),
416.927(d) (2008)); see also 20 C.F.R. § 404.1527(c), 416.927(c) (2016); SSR 06-03p,
71 Fed. Reg. at 45595; 82 Fed. Reg. at 5869-70, 5880-81.
NP Edwards, Poppe’s treating psychiatric nurse practitioner,10 opined that most of
Poppe’s limitations were mild or nonexistent. AR 406-07. According to NP Edwards,
Poppe would have no difficulties making simple work-related decisions. Id. She found
The Social Security Administration promulgated new rules for evaluating medical evidence
effective March 27, 2017. 82 Fed. Reg. at 5844. I need not decide whether the new rules apply,
because for the issues here, the new and old rules are substantively the same. I therefore cite to
both the old and new rules throughout this Report and Recommendation.
For claims filed before March 27, 2017, a nurse practitioner is not considered an “acceptable
medical source,” and thus, a nurse practitioner is not a treating source whose opinion may be
entitled to controlling weight. 20 C.F.R. §§ 404.1502, 404.1517, 404.1527(c), 416.902,
416.913, 416.927(c); 82 Fed. Reg. at 5873, 5880-81.
marked limitations in only three areas: working in coordination with others without being
distracted by them, performing activities within a schedule, and sustaining an ordinary
routine without special supervision.
Overall, NP Edwards found Poppe
suffered from no limitations in her activities of daily living, no limitations in social
functioning, and only mild limitations in concentration, persistence, and pace. AR 407.
She noted that she had not yet ruled out the possibility that Poppe was malingering. AR
The ALJ assigned “partial weight” to NP Edwards’s RFC assessment after finding
that the overall record reflects that Poppe suffers from more limitations than found by
NP Edwards (AR 16-17), so it is surprising that Poppe is challenging the weight the ALJ
gave to NP Edwards’s opinion. Poppe argues that the ALJ erred in rejecting the three
marked limitations found by NP Edwards. Doc. 14 at 11. But the ALJ’s RFC assessment
includes that Poppe may have only occasional interaction with small groups of coworkers
and that she is “essentially limited to performing solitary work tasks” (AR 13), which
incorporates NP Edwards’s finding that Poppe has marked difficulties working in
coordination with others. The ALJ also included in his RFC assessment that Poppe can
have “no production rate pace” (AR 13), which is perhaps based on NP Edwards’s
finding of marked limitation performing activities within a schedule.
In any event, substantial evidence supports the ALJ’s decision to reject limitations
related to sustaining an ordinary routine without special supervision and performing
activities within a schedule. The ALJ gave a “good reason” for affording NP Edwards’s
opinion less weight: the ALJ found her opinion internally inconsistent because NP
Edwards found three marked limitations in the category of concentration, persistence, or
pace but only mild limitations in that category overall (AR 16-17, 406-06). See Guilliams
v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005) (“Physician opinions that are internally
inconsistent, however, are entitled to less deference than they would receive in the
absence of inconsistencies.”). Poppe points to evidence in the record that supports the
marked limitations found by NP Edwards, but substantial evidence supports the ALJ’s
decision even though the ALJ could have weighed the evidence differently. For example,
the record demonstrates that Poppe was consistently able to walk her child to and from
school (operating within a schedule), that NP Edwards encouraged Poppe to obtain a job,
and that NP Edwards could not rule out the possibility that Poppe was feigning some of
her symptoms to obtain disability benefits. AR 54-55, 404, 476.
Dr. Conditt, the consulting examiner who performed two evaluations of Poppe,
opined that Poppe had no difficulty understanding instructions. AR 528. He found that
Poppe had moderate to severe difficulties carrying out instructions and maintaining
concentration and pace “due to impulsivity and . . . moving on to something different
without completing what was started.” AR 529. He found Poppe severely limited in her
ability to interact appropriately with others “due to being suspicious of others and blurting
out things.” Id. He found moderate limitations in her ability to exercise workplace
judgment “due to making very poor decisions when manic.” Id. Similarly, he found she
could handle funds “relatively well, but is in danger of going on spending sprees when
. . . manic.” Id.
The ALJ assigned Dr. Conditt’s opinion only partial weight because it was
“primarily based on [Poppe’s] subjective reports,” which the ALJ found not entirely
credible. AR 16. Poppe does not dispute (Doc. 14 at 6-7) that Dr. Conditt relied on her
subjective statements that she spent money inappropriately when manic, that she was
easily distracted, that she had difficulties interacting with others, and that she had
difficulties completing tasks she started.
And although Dr. Conditt
evaluated Poppe’s memory and concentration through objective testing, he also relied on
her subjective statements in forming his opinion regarding Poppe’s ability to concentrate,
explicitly noting that it was based on Poppe’s statements of being impulsive and unable
to finish tasks. AR 527, 529. Thus, all of the limitations found by Dr. Conditt rely, at
least in part, on Poppe’s subjective statements.
The ALJ appropriately
discounted Dr. Conditt’s opinion for this reason. See Wildman v. Astrue, 596 F.3d 959,
966-67 (8th Cir. 2010); see also Kirby, 500 F.3d at 709 (discussing opinion evidence in
the context of step two of the disability determination).11
As a final note, the ALJ did not fail to assign weight to a second RFC opinion of
Dr. Conditt, as alleged by Poppe. Doc. 14 at 7. When Dr. Conditt reexamined Poppe
in December 2014, he revised his diagnosis and his opinion of Poppe’s GAF score. AR
525-526, 528. He did not revise his August 2013 opinion of Poppe’s RFC, however.
Moreover, the ALJ was aware of Dr. Conditt’s December 2014
reevaluation, as the ALJ cited to Dr. Conditt’s initial report incorporated into his second
report when citing to Dr. Conditt’s RFC opinion (as opposed to citing to the initial report
alone). AR 16, 389-91, 525-29.
C. Some Medical Evidence
When determining a claimant’s RFC, the ALJ must consider “all of the relevant
evidence, including the medical records, observations of treating physicians and others,
and an individual’s own description of his limitations.” McKinney v. Apfel, 228 F.3d
860, 863 (8th Cir. 2000). The ALJ’s RFC determination must be supported by at least
some medical evidence from a medical professional that “addresses the claimant’s ability
to function in the workplace.” Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001)
(quoting Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)).
The case relied on by Poppe, Mrdalj v. Colvin, No. C15-2009, 2015 WL 7871031, at *7
(N.D. Iowa Dec. 3, 2015), is distinguishable because in that case, the psychological consulting
examiner based his RFC opinion on the multiple objective tests he administered.
Poppe argues that because the ALJ gave only partial weight to the mental RFC
opinions of Dr. Conditt and NP Howe, no medical evidence supports the ALJ’s mental
RFC determination. Because the record contains opinion evidence from a consulting
psychological examiner and a treating psychiatric source (albeit a non-acceptable treating
medical source), this case is distinguishable from Nevland v. Apfel, 204 F.3d 853, 858
(8th Cir. 2000), in which the record contained no RFC opinions other than from nonexamining state agency consultants. Moreover, merely because the ALJ did not fully
adopt the mental limitations set forth by NP Edwards and Dr. Conditt does not require
the ALJ to obtain additional opinion evidence: “[a]n ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ’s decision.” Anderson v. Shalala, 51 F.3d 777,
779 (8th Cir. 1995) (quoting Naber, 22 F.3d at 189).
Here, the ALJ adopted more limitations than suggested by NP Edwards, who
opined that Poppe would have no to mild difficulties understanding, remembering, and
carrying out detailed instructions (the ALJ’s RFC assessment limited Poppe to simple,
routine tasks) and interacting appropriately with coworkers or the public (the ALJ limited
Poppe to occasional interaction with small groups of people). AR 13, 406. Like NP
Edwards (and contrary to Dr. Conditt), the ALJ did not impose limitations specifically
limiting Poppe’s ability to maintain concentration, exercise workplace judgment, or
respond to change.
AR 13, 406-07, 529. And as noted earlier, the ALJ’s RFC
assessment limits Poppe to performing solitary work tasks, incorporating NP Edwards’s
finding of marked limitation working in coordination with others. AR 13, 406. The ALJ
adopted the opinion of NP Edwards to the extent it was consistent with the ALJ’s
independent review of the medical evidence, and the ALJ’s resulting mental RFC opinion
is consistent with the opinion of the state agency medical consultants, who found no
marked limitations after analyzing the effect of the same severe mental impairments as
found by the ALJ. AR 13, 89-91, 101-03, 114-16, 126-28. The medical evidence relied
on by the ALJ is sufficient with regards to Poppe’s mental RFC. See Kamann v. Colvin,
721 F.3d 945, 948-51 (8th Cir. 2013) (rejecting claimant’s argument that the ALJ
“formulated his own medical opinion” when the ALJ rejected the RFC opinion of the
one-time examining psychologist and instead relied on a “thorough review [of] years
of medical evidence on record” to formulate an opinion “consistent with the views of . .
. the reviewing agency psychologist”); see also Anderson, 51 F.3d at 779-80 (holding
that the ALJ’s RFC determination was supported by substantial evidence when the ALJ
relied on the opinions of two reviewing physicians; adopted some, but not all, of the
limitations set forth by the treating physicians; and “conducted an independent analysis
of the medical evidence”); cf. Lauer, 245 F.3d at 704-05 (rejecting the Commissioner’s
argument that the ALJ’s RFC determination was based on the opinion of the nonexamining reviewing consultant when the medical basis for the ALJ’s decision was
unclear and the non-examining reviewing consultant found fewer severe impairments than
Although it is unclear whether Poppe challenges the ALJ’s failure to develop the
record with regard to her physical limitations (Doc. 14 at 17-19), I will address the issue.
The record contains no opinion evidence regarding the effect Poppe’s migraines have on
her ability to work (not even the state agency medical consultants addressed the issue, as
they did not find Poppe’s migraines to be severe). Thus, Nevland is implicated. See 204
F.3d at 858. Despite the absence of a physical RFC opinion, however, remand is not
required as “long as other evidence in the record provides a sufficient basis for the ALJ’s
decision.” Figgins v. Colvin, No. C 13-3022-MWB, 2014 WL 1686821, at *9 (N.D.
Iowa Apr. 29, 2014) (quoting Naber, 22 F.3d at 189). “A claimant’s records need not
explicitly discuss work-related limitations, as long as the records describe the claimant’s
‘functional limitations with sufficient generalized clarity to allow for an understanding of
how those limitations function in a work environment.’” Id. (quoting Cox v. Astrue, 495
F.3d 614, 620 n.6 (8th Cir. 2007)).
A review of the treatment notes establishes that Poppe first reported having
frequent headaches in May 2013 to NP Thompson, who suggested she use over-thecounter Excedrin Migraine and ibuprofen for treatment. AR 596-98. On August 16,
2013, she reported to Dr. Conditt during her mental health consulting examination that
she had migraines about twice a week. AR 528. Two weeks later, she told nurse
practitioner Randy Wirtz (NP Wirtz) at the clinic that her migraines had become more
severe and that Excedrin offered no relief. AR 591-92. He prescribed amitriptyline. Id.
By the end of September, she had stopped taking amitriptyline because it made her dizzy.
AR 480, 589. NP Thompson told Poppe to buy a pill cutter and to cut the amitriptyline
pills in half. AR 589. On November 5, 2013, Poppe told a physician at the clinic, Dr.
Courtney Bochmann, that the amitriptyline had decreased the frequency of her migraines
from daily to three times a week and that the drug made her migraines less intense. AR
586. She told Dr. Bochmann that she became sensitive to light during a migraine. Id.
Dr. Bochmann increased Poppe’s dosage of amitriptyline and prescribed a medication to
treat breakthrough migraines. AR 587. On December 5, 2013, during a follow-up
appointment with Dr. Bochmann, Poppe indicated that the medications had not improved
her symptoms and that she experienced a migraine every other day. AR 584. Dr.
Bochmann stopped Poppe’s use of amitriptyline and prescribed Topamax instead. AR
585. She also prescribed a new medication to treat breakthrough migraines. Id. Since
then, Poppe’s migraines have been under control. On December 16, 2013, Poppe told
NP Edwards that two to three days after beginning the Topamax prescription, she had
not had any migraines. AR 462. In March 2014, Poppe told NP Wirtz that her migraines
“ha[d] been doing well since taking the Topamax.” AR 553. In November 2014, Poppe
told NP Edwards that she no longer has problems with migraines and that the medications
Other treatment notes demonstrate that after being prescribed
Topamax, Poppe complained of other physical ailments, but not migraines. AR 547,
550, 560, 562, 565, 572, 578.
Although Poppe testified she sometimes forgets to take her medication and
suggested she still gets migraines with some frequency, the medical evidence
demonstrates that Poppe’s migraines are well-controlled with the level of compliance she
is able to achieve. This case is similar to Agan v. Astrue, 922 F. Supp. 2d 730, 744,
755-56 (N.D. Iowa 2013), in which the record lacked a physical RFC opinion from a
treating or examining source and the ALJ found the claimant somewhat limited in his
ability to sit, stand, and lift things. Nevertheless, the court held that remand was not
required (and the ALJ did not need to obtain additional opinion evidence) because “[t]he
medical evidence, including physical examination treatment notes from the treating
physicians, provide sufficient support for a finding that [claimant] was able to function
in the workplace.” Id. at 756. Treatment notes reflected that the claimant had recovered
well from surgery and that a physician’s assistant had suggested a lifting limitation, but
nothing else. Id. at 755. The ALJ imposed additional limitations based on the claimant’s
subjective complaints. Id. at 756. Similarly, here, the treatment notes demonstrate that
since being prescribed Topamax, Poppe rarely suffers migraines. The ALJ credited some
of Poppe’s testimony, however, and limited her exposure to bright lighting and odors,
which Poppe testified could trigger a migraine. AR 13, 35-36. As in Agan, I recommend
holding that the ALJ did not need to obtain additional opinion evidence from an examining
The court respectfully recommends that the district court affirm the decision of the
Social Security Administration and enter judgment in favor of the Commissioner.
Objections to this Report and Recommendation must be filed within fourteen days
of service in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b). Objections must specify the parts of the Report and Recommendation to which
objections are made, as well as the parts of the record forming the basis for the objections.
Fed. R. Civ. P. 72. Failure to object to the Report and Recommendation waives the
right to de novo review by the district court of any portion of the Report and
Recommendation, as well as the right to appeal from the findings of fact contained
therein. See United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009).
IT IS SO ORDERED this 12th day of July, 2017.
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