Motley v. Astrue

Filing 28

ORDER - This matter is before the Court on the denial, initially and on reconsideration, of the plaintiff's application for supplemental security income (SSI) benefits based on disability. The court concludes the ALJ's decision, which repr esents the final decision of the Commissioner of the SSA, does not contain the errors alleged by Motley. The decision of the Commissioner is affirmed, the appeal is denied, and a separate Judgment in favor of the defendant will be entered. Ordered by Magistrate Judge Thomas D. Thalken. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LORIE M. MOTLEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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4:10CV3031

ORDER

This matter is before the Court on the denial, initially and on reconsideration, of the
plaintiff’s application for supplemental security income (SSI) benefits based on disability
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq.1 The Court has
carefully considered the record (AR.) (Filing No. 14) and the parties’ briefs (Filing Nos. 21,
26 and 27).

PROCEDURAL BACKGROUND
The plaintiff, Lorie Marie Motley (Motley), filed her application for disability insurance
benefits on January 22, 2007 (AR. 90-94).2 The Social Security Administration (SSA)
denied benefits initially (AR. 48-51) and on reconsideration (AR. 54-57). Motley requested
a review and a hearing before an administrative law judge (ALJ) (AR. 58). On April 21,
2009, Motley and vocational expert (VE) Jose Chaparro, appeared and testified at a
hearing before ALJ Sharon L. Madsen (AR. 17-36). Motley’s attorney also appeared at the
hearing. On July 1, 2009, the ALJ issued her written opinion that Motley has not been
under a disability since the date of her application was filed, January 22, 2007 (AR. 8-15).
On December 11, 2009, the Appeals Council denied Motley’s request for review (AR. 1-3).
Therefore, the ALJ’s July 1, 2009, decision constitutes the Commissioner’s final decision
subject to judicial review.
1

The parties consented to jurisdiction by a United States Magistrate Judge pursuant to to 28 U.S.C.
§ 636(c). See Filing No. 18.
2

The citations to the Adm inistrative Record refer to the page num bers appearing at the bottom righthand corner.

Motley argues (1) the ALJ improperly discounted the opinions of Motley’s nurse
practitioner and therapist; and (2) the ALJ’s assessment of Motley’s residual functional
capacity (RFC) with respect to her mental limitations was not supported by substantial
evidence. See Filing No. 21 - Brief p. 9.

FACTUAL BACKGROUND
Motley alleges she has been disabled since May 1, 2006, as a result of bipolar
disorder, Post Traumatic Stress Disorder (PTSD), and several physical conditions including
back pain and asthma (AR. 21, 90, 103, 133, 147). Motley was born September 19, 1972,
and was 34 years old on her alleged onset date of May 1, 2006, and 36 years old on the
date of her hearing before the ALJ (AR. 21). She attended school through the sixth grade,
and later earned her general equivalency diploma (GED) (AR. 22). Motley has worked
sporadically in numerous positions including housekeeper, stocking/retail store employee,
and fast food restaurant worker (AR. 23-24, 104). In her Daily Activities and Symptoms
Report completed on February 24, 2007, she described herself as a stay-at-home wife and
mother of three young children (AR. 114).
The ALJ’s July 1, 2009, decision addresses Motley’s claims of both physical and
mental impairments (AR. 8-15). However, in this administrative appeal, Motley challenges
only the ALJ’s determination of disability with respect to her mental impairments.
Therefore, the court will limit its discussion of the factual background and analysis to
Motley’s mental impairments and resulting limitations.

A.

Medical Records
Motley sought out counseling in April 2007 on the advice of an individual, Kara, who

performed home visits for the State Ward Department (AR. 196). On April 26, 2007,
Motley completed an intake assessment with Kim Baker, APRN3 (Ms. Baker), at the MidPlains Center (AR. 196-200). Motley reported suffering from depression all of her life (AR.
196). She reported feeling depressed and irritable, with her depression causing her to feel

3

Advanced Practice Registered Nurse.
2

confused (AR. 196). She described “very quick mood changes, from depression to
hypomanic,” low energy, poor concentration, paranoia, temper tantrums, feelings of
helplessness, poor sleep, and nightmares (AR. 196-197). She reported that her husband
describes her condition as a double personality (AR. 196). Motley described a history of
sexual and emotional abuse and stated she had previously taken medication for
depression (AR. 197). Ms. Baker gave Motley an initial diagnosis of bipolar II disorder, and
PTSD, with a GAF of 604 (AR. 199).

Motley presented for the intake assessment

appropriately groomed, cooperative and friendly, with broad facial expression, and
appropriate behavior during the interview (AR. 199). She was assessed as having logical
and goal oriented thought processes, intact memory, good insight and judgment, as well
as good concentration and focus (AR. 199). Motley’s affect was described as mood
congruent, with a “somewhat sad” mood (AR. 199). With respect to Motley’s emotional
status, Ms. Baker opined “I believe she has a lot of worry and confusion” (AR. 199). Motley
was not on any medication at the time of the assessment, but indicated a need for
medication and counseling (AR. 199-200). Ms. Baker prescribed Invega, and directed
Motley to return in two weeks (AR. 200).
Motley attended a follow-up appointment for medication management with Ms.
Baker on May 3, 2007 (AR. 194-195). Motley reported the Invega helped with her mindracing and she was sleeping well (AR. 194). She described improvement with irritability
and anxiety, but stated she was still experiencing some depression (AR. 194). Ms. Baker
noted Motley’s improved mood, with some remaining depression (AR. 195). Ms. Baker
noted Motley’s medication compliance and prescribed Paxil in addition to the Invega, and
directed Motley to return for a medication check in three to four weeks (AR. 195).
On June 7, 2007, Ms. Baker met with Motley for medication management (AR. 247248). Motley reported a significant improvement with her depression (AR. 247). However,

4

The Global Assessm ent of Functioning (GAF) is a clinician’s judgm ent of the individual’s overall level
of functioning, not including im pairm ents due to physical or environm ental lim itations. See Am erican
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, 30-32 (4th ed. text rev. 2000) (DSM-IVTR). A GAF of 51 through 60 is characterized by m oderate sym ptom s (e.g., flat affect and circum stantial
speech, occasional panic attacks) or m oderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers). See DSM-IV-TR at 32.
3

she also reported experiencing anxiety, and a return of her mind-racing and poor sleep,
which she attributed to discussions in therapy about her childhood (AR. 247). Ms. Baker
noted Motley appeared appropriately groomed and compliant with medication (AR. 248).
Ms. Baker increased Motley’s Invega and Paxil dosages (AR. 248).
On June 18, 2007, Ms. Baker noted Motley’s appropriate grooming and stable mood
(AR. 245-246). Motley reported the Invega helped with her anxiety and mind-racing but
complained it made her too drowsy and she was unable to get through the day due to the
fatigue (AR. 245). Ms. Baker continued the Paxil and slightly decreased Motley’s dosage
of Invega (AR. 246).
Linda Schmechel, Ph. D. (Dr. Schmechel), a state agency psychologist, reviewed
Motley’s record and completed forms titled “Mental Residual Functional Capacity
Assessment” and “Psychiatric Review Technique” on July 11, 2007 (AR. 203-219). In the
areas of understanding and memory, sustained concentration and persistence, social
interaction, and adaptation, Dr. Schmechel rated Motley no more than moderately limited
in four of twenty listed activities or abilities, and found no significant limitation in the
remaining sixteen (AR. 203-204). She determined Motley has no limitations in maintaining
social functioning, mild limitations in activities of daily living, moderate limitations in
maintaining concentration, persistence or pace, and no episodes of decompensation (AR.
227). In the notes section of the review, Dr. Schmechel wrote “[r]ecords obtained from
general care provider show no mental health complaints during routine visits” (AR. 219).
Furthermore, during an evaluation on April 26, 2007, Motley “reported a history of
medication for depression, but stopped using it on her own” (AR. 219). Dr. Schmechel
notes the diagnosis “given by ARPN Baker/Dr. Sood included Bipolar D/O and PTSD” (AR.
219).5 She notes Motley “continues to use medication, with professed good results,” and
has not required hospitalization (AR. 219). Motley does not express any concerns about
caring for the three young children in her home, and Dr. Schmechel noted there was no
indication Motley is unable to care for those children, further commenting:

5

No reference to Dr. Sood appears on the April 26, 2007, Intake Assessm ent found in the
Adm inistrative Record before this court (AR. 196-200).
4

[Motley] was able to adopt twins, a process that would have required
extensive evaluation and requires attending classes, interviews and
evaluations, and more home visits. There is no indication that claimant had
difficulty obtaining certification as a foster parent or is under any type of
censure for problems fulfilling her duties as a foster parent. Typically,
children in foster care have additional issues, which make foster parenting
a difficult endeavor.
(AR. 219). Dr. Schmechel opined Motley “may have some difficulty with more complicated
jobs that require extended concentration on complicated matters. However, based on her
home activities, [she] is capable of performing at least simple/unskilled work on a sustained
basis” (AR. 219).
Motley’s last medication check with Ms. Baker was on August 16, 2007 (AR. 243244). Motley requested adjustments to her medications, complaining of poor sleep and
auditory hallucinations (AR. 243). Motley described hearing voices, sometimes just
jumbled words, but also described an incident when the voices told her to put her hand on
the fire while she was grilling and cooking dinner for her family (AR. 243). She indicated
as a result she was scared, and was not sleeping well (AR. 243). Ms. Baker noted Motley’s
appearance was appropriate but described her mood as “rather cautious, guarded” (AR.
244). Ms. Baker discontinued the Invega in response to Motley’s complaint she was
experiencing lactation as a side effect of the medication (AR. 243). Ms. Baker continued
the Paxil, and prescribed Seroquel and Trazodone (AR. 244). Motley was told to return for
medication management in two weeks, and further advised to seek immediate attention
“if her auditory hallucinations worsen or become more fearful for her” (AR. 244).
On October 4, 2007, Motley saw Linda Berry, APRN (Ms. Berry), for medication
management at the Mid-Plains Center (AR. 241-242). Ms. Berry noted Motley was
pleasant and cooperative but noted her affect was constricted (AR. 241). Motley reported
full resolution of her auditory hallucinations and improved sleep with the introduction of
Seroquel (AR. 241). However, she complained of physical symptoms including “shakiness
when she lies down to sleep at night, increasing headaches, ringing in her ears and
soreness at her kidney area” (AR. 241). Ms. Berry advised Motley to see her primary
physician to determine whether the physical symptoms might be related to the Seroquel
(AR. 242). When Motley returned to see Ms. Berry on October 15, 2007, she reported she
5

had been successfully treated for a significant kidney infection (AR. 239). Motley indicated
the absence of auditory hallucinations and denied depression or significant mood swings
(AR. 239). Ms. Berry assessed Motley as stable with no change in her mental status, but
also noted Motley’s reports of significant fatigue and excessive sleep (AR. 239-240). Ms.
Berry continued Motley’s Paxil and Seroquel, and began to decrease, then discontinue, the
Trazodone (AR. 240).
Motley saw Ms. Berry for a follow-up appointment on November 12, 2007 (AR. 238).
Ms. Berry indicates Motley described significant sleep problems with the planned decrease
and discontinuation of the Trazodone (AR. 238). The documentation from the appointment
is limited, indicating “the patient’s notes were inadvertently lost in the process of
downloading transcription in to the computer” (AR. 238). The remaining notes list the
following current medications: Seroquel, Trazodone, and Paxil (AR. 238).
At her April 14, 2008, appointment with Ms. Berry, Motley reported she was feeling
well with improvement in her mood and sleep, less paranoia, and fewer nightmares (AR.
236-237). However, she also reported hearing voices continuously, that worsen when she
is angry or upset (AR. 236).

Motley explained she “began experiencing auditory

hallucinations approximately 8 years ago” and “her different personalities can range from
being happy to emotional or mean” (AR. 236). Motley wondered if she had Multiple
Personality Disorder, based, in part, on others opinions of her sudden mood swings and
“different personalities” (AR. 236).

Ms. Berry observed Motley to be pleasant and

cooperative with good grooming (AR. 237). Her mood was “somewhat constricted” yet
“fairly stable,” and her affect was “slightly depressed” (AR. 237). Ms. Berry made no
change in Motley’s diagnosis but prescribed Abilify to treat her “psychotic symptoms” and
instructed her to return in three weeks (AR. 237).
On May 13, 2008, Motley returned to see Ms. Berry for medication management
(AR. 234). Motley reported an improvement in the voices, experiencing them more in the
background and therefore finding them more manageable (AR. 234). She reported
sleeping well and her depression was improved (AR. 234). Ms. Berry increased Motley’s
Abilify dosage (AR. 235).

6

Motley called Ms. Berry on July 17, 2008, complaining of an increase in auditory
hallucinations and anxiety (AR. 232). “She perceived that the voices were trying to take
her over and found that frightful” (AR. 232). Ms. Berry prescribed an additional dose of
Seroquel (AR. 232). Ms. Berry saw Motley four days later, on July 21, 2008 (AR. 232).
Motley reported her auditory hallucinations had lessened, but she was worrisome and was
having difficulty sitting still (AR. 232). Ms. Berry observed Motley’s constant leg movement
and discussed that medication side effect and others with Motley (TR. 232-233). Ms. Berry
instructed Motley to decrease her dosage of Abilify for a week and then discontinue its use
(AR. 233).
On October 20, 2008, Ms. Berry saw Motley for medication management however,
the second page of documentation is missing from the record (AR. 231). In response to
that visit, Ms. Berry changed Motley’s diagnosis to Schizoaffective Disorder, Bipolar Type
and PTSD, Chronic (AR. 231). Motley reported working two to three hours a day at
Subway and described feeling stressed and hearing voices when things were busy on the
job (AR. 231). She talked to Ms. Berry about hearing voices as a child and her mother’s
dismissive reaction (AR. 231). Motley reported “that she did not report her auditory
hallucinations previously because she was scared that someone would put her away” (AR.
231). She also mentioned an aunt who has Schizophrenia (AR. 231). Documentation from
a later appointment suggests Motley was prescribed Geodon on October 2, 2008 (AR.
229).
On December 1, 2008, Ms. Berry met with Motley for medication management (AR.
227-229). They discussed the recent change to Motley’s medications, specifically the
addition of Geodon (AR. 229). Motley denied any side effects but reported feeling sluggish
during the day (AR. 229).

She also reported a resolution of her depression and

improvement with her anxiety and related leg movements (AR. 229). Motley reported she
continued to have visual hallucinations, seeing people that are not there, and her paranoia
had worsened (AR. 229). Ms. Berry increased the Geodon dosage and discontinued
Motley’s morning dose of Seroquel (AR. 230).
Motley returned to see Ms. Berry two weeks later, on December 16, 2008,
complaining of an increase in visual hallucinations and a continuance of auditory
7

hallucinations (AR. 227). Motley described an increase in the hallucinations when she
feels stressed at work and reported telling her employer she could not work full-time (AR.
227). Ms. Berry opined Motley was experiencing an increase in psychosis (AR. 228). Ms.
Berry prescribed Invega and directed Motley to decrease her dosage of Geodon over a
period of eighteen days before discontinuing its use (AR. 228).
On January 29, 2009, Motley reported an improvement with visual hallucinations,
with them occurring only when her stress level is elevated, and a slight improvement with
auditory hallucinations (AR. 225). Motley informed Ms. Berry she was experiencing a side
effect of taking Invega (lactation), but expressed a preference to continue on the
medication due to its ability to control her symptoms (AR. 225). Motley reported working
only one and a half to two hours each day, “otherwise it is not manageable to her” (AR.
225). Ms. Berry continued Motley’s medications and added Abilify (AR. 224).
On March 11, 2009, Motley saw Ms. Berry for medication management and
announced she was ending her employment due to her anxiety causing the auditory
hallucinations to intensify at work (AR. 223). She reported she was no longer having visual
hallucinations but her auditory hallucinations were continuous, even waking her up during
the night (AR. 223). She reported the voices were more manageable when she was under
less stress, but indicated she experienced racing thoughts at night (AR. 223). Ms. Berry
assessed Motley as stable and continued her medications, suggesting an increased
dosage to address the sleep issues (AR. 224).
Ms. Berry completed a Medical Source Statement in April 2009 (AR. 257-262). Ms.
Berry indicated she had treated Motley on ten occasions from October 4, 2007, to March
11, 2009 (AR. 257). Ms. Berry listed Motley’s diagnosis, signs and symptoms, medications
with their side effects, and a current GAF of 50,6 with the highest GAF in past year being
50 (AR. 257-258). Ms. Berry noted that with medication Motley has attained a “reduction
of hallucinations” and her depression is “sometimes manageable” (AR. 259).

She

indicated Motley’s marked limitations in activities of daily living, maintaining social

6

A GAF of 41 through 50 is characterized by serious sym ptom s (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious im pairm ent in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). See DSM-IV-TR at 34.
8

functioning, and concentration, persistence or pace, but no episodes of decompensation
(AR. 259). Ms. Berry also rated Motley’s “mental abilities and aptitude needed to do
unskilled work,” indicating Motley has no useful ability to function in seven of sixteen areas,
seriously limited ability to function in three other areas, and limited but satisfactory ability
to function in the remaining six areas (AR. 261). Ms. Berry indicted Motley has no useful
ability to function with respect to semiskilled and skilled work (AR. 262). Ms. Berry further
described Motley as having limited but satisfactory abilities to interact appropriately with
the general public, maintain socially appropriate behavior, adhere to basic standards of
neatness and cleanliness, and use judgment, but no useful ability to function independently
(AR. 262).
Also in April 2009, Motley’s therapist, Sandra Eaton, LMHP (Ms. Eaton), completed
a Medical Source Statement (AR. 250-255). Ms. Eaton indicated she had treated Motley
during 31 sessions from March 3, 2007, to April 15, 2009 (AR. 250). Ms. Eaton listed
Motley’s diagnosis, signs and symptoms, medications with their side effects, and a current
GAF of 50, with the highest GAF in past year being 60 (AR. 250-251). Ms. Eaton noted
that with medication Motley was “more functional, less depressed” and had “improved
sleep” (AR. 252). She indicated Motley has no limitations in activities of daily living,
moderate limitations in concentration, persistence or pace, marked limitations in
maintaining social functioning, and one or two episodes of decompensation (AR. 252). Ms.
Eaton also rated Motley’s “mental abilities and aptitude needed to do unskilled work,”
indicating Motley has no useful ability to function in eight of sixteen areas, seriously limited
ability to function in three other areas, and limited but satisfactory ability to function in the
remaining five areas (AR. 254). Ms. Eaton indicted Motley has a range of abilities to
function with respect to semiskilled and skilled work (AR. 255).

Ms. Eaton further

described Motley as having seriously limited abilities to interact appropriately with the
general public, use judgment, and function independently; limited but satisfactory abilities
to maintain socially appropriate behavior; and more than satisfactory ability to adhere to
basic standards of neatness and cleanliness (AR. 255).

9

B.

Motley’s Testimony
On April 21, 2009, Motley testified at the administrative hearing before the ALJ (AR.

21-31). She stated she was married and had three children at home, two five-year olds
and one ten-year-old (AR. 21-22). She has a sixth grade education but also has a GED
(AR. 22). She has a driver’s license and drives (AR. 22). She does household chores,
including some of the cooking, and can take care of her own personal hygiene (AR. 22-23).
She described her typical day as getting her children ready for school, laying down due to
her anxiety, then getting up to pick-up around the house and sitting down to read a book
(AR. 23). Motley briefly described her previous work experience as part-time employment
including Kentucky Fried Chicken and a housekeeping job at a motel (AR. 24). She
described her most recent employment as a part-time job at Subway, where she worked
eight to ten hours per week (AR. 24, 30). She testified that she tried on two occasions to
work more hours but was unable to do so because “my voices came and took over” (AR.
30).
Motley no longer has back or neck pain (AR. 24). She attributed this to injections
she received from a specialist eight or nine years ago (AR. 24). Motley’s asthma is kept
under control with two different medications used on a twice daily, and twice weekly basis
(AR. 25). Motley denied any other physical problems (AR. 25).
Motley described experiencing anxiety, depression, paranoia, sleeplessness,
nightmares, and memory problems related to her PTSD and bipolar disorder (AR. 25, 28,
29). She also described mood swings, irritability, crying daily, and feelings of hopelessness
(AR. 29, 31). She described typical work situations when she felt stressed and had an
anxiety attack or was unable to concentrate and pay attention to the task at hand (AR. 26,
31). Motley also testified she hears voices and sees things that are not there (AR. 25).
She explained she has heard voices since she was a child, but that they have intensified
in adulthood and she now experiences them on a daily basis in response to stress (AR. 2526). She testified she experiences visual hallucinations when the voices are more intense
(AR. 26).
Motley testified she participates in counseling and medication management
appointments on a regular basis (AR. 29). Specifically, she listed her medications as
10

Seroquel, Invega, Paxil and Abilify (AR. 27). She indicated the medications help at night,
reducing her racing thoughts (AR. 28). She testified the medications also help with the
voices, but that she still hears them though not as loud (AR. 27). She takes some of the
medications at night because they make her drowsy (AR. 28). She testified that she used
to see Ms. Berry for medication management every month, but now sees her every three
months (AR. 29). She previously attended counseling every two weeks, but now attends
every three weeks (AR. 29).

C.

Vocational Expert’s Testimony
The VE, Jose Chaparro, appeared and testified he had reviewed Motley’s work

history (AR. 31). The VE described Motley’s previous work as a housekeeper/cleaner as
light work and unskilled, Specific Vocational Preparation (SVP) level two (AR. 32). The
ALJ asked the VE to consider a hypothetical claimant of Motley’s age, education, and work
background, who has no exertional limitations but who requires asthma precautions and
must avoid concentrated exposure to dust, gases and fumes, and who is restricted to
simple routine tasks (AR. 32-33). Based on these restrictions, the VE testified such an
individual would be capable of performing Motley’s past relevant work (AR. 33).
The ALJ then asked the VE for other jobs, given the ALJ’s uncertainty that Motley
had past relevant work (AR. 33). The VE testified that at the unskilled, light exertional
level, the claimant could work in the following positions: cashier with 12,700 jobs existing
in Nebraska, and 1,805,000 jobs in the national economy; lunch room or coffee shop
counter attendant with 900 jobs existing in Nebraska, and 167,000 jobs in the national
economy; and fast food restaurant worker with 11,700 jobs existing in Nebraska, and
1,942,000 jobs in the national economy (AR. 33).
In a second hypothetical, the ALJ asked the VE to consider a hypothetical claimant
of Motley’s age, education, and work background, who has the following limitations,
“medium with 50 and 25, sit/stand/walk 6, asthma, simple routine” (AR. 33). The VE
testified that the claimant could do the same jobs as in the first hypothetical (AR. 33). In
a third hypothetical, the ALJ asked the VE to consider a hypothetical claimant of Motley’s
age, education, and work background, who has the following limitations, “medium with 50
11

and 25, sit/stand/walk 6, asthma, simple routine jobs but also what would be considered
a low stress job where you worked . . . at a regular pace or at your own pace” (AR. 33).
The VE testified that at the unskilled, medium exertional level, the claimant could work in
the following positions: kitchen helper with 2,200 jobs existing in Nebraska, and 372,800
jobs in the national economy; salvage laborer (sorting recyclables) with 500 jobs existing
in Nebraska, and 75,700 jobs in the national economy; and sexton (janitor) with 1,200 jobs
existing in Nebraska, and 180,400 jobs in the national economy (AR. 34). In a fourth, and
final, hypothetical, the ALJ asked the VE to add the following restriction to the third
hypothetical: the claimant would miss three to four days per month due to her symptoms
(AR. 34). The VE testified there would be no jobs available (AR. 34).7

THE ALJ’S DECISION
The ALJ concluded Motley has not been disabled under the Act since January 22,
2007, therefore not entitled to disability insurance benefits (AR. 23, 48). As noted by the
ALJ, the Act defines “disability” as an inability to engage in any substantial gainful activity
due to any medically determinable physical or mental impairment or combination of
impairments (AR. 8). See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). These
impairments must be expected to result in death or must last for a continuous period of at
least 12 months. Id.
The ALJ must evaluate a disability claim according to the sequential five-step
analysis prescribed by the Social Security regulations. Flynn v. Astrue, 513 F.3d 788, 792
(8th Cir. 2008); 20 C.F.R. § 404.1520(a)(4).
During the five-step process, the ALJ considers (1) whether the
claimant is gainfully employed, (2) whether the claimant has a
severe impairment, (3) whether the impairment meets the
criteria of any Social Security Income listings, (4) whether the
impairment prevents the claimant from performing past
relevant work, and (5) whether the impairment necessarily
prevents the claimant from doing any other work.

7

Motley’s attorney posed an additional hypothetical to the ALJ, including additional lim itations with
respect to attention and attendance, and the ability to follow procedures and m ake sim ple decisions, however,
the transcript reflects that what was said at this part of the hearing was inaudible (AR. 34-35).
12

Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quotation omitted). More specifically,
the ALJ examines:
[A]ny current work activity, the severity of the claimant’s
impairments, the claimant’s residual functional capacity and
age, education and work experience. See 20 C.F.R. §
404.1520(a); Braswell v. Heckler, 733 F.2d 531, 533 (8th Cir.
1984). If the claimant suffers from an impairment that is
included in the listing of presumptively disabling impairments
(the Listings), or suffers from an impairment equal to such
listed impairment, the claimant will be determined disabled
without considering age, education, or work experience. See
Braswell, 733 F.2d at 533. If the Commissioner finds that the
claimant does not meet the Listings but is nevertheless unable
to perform his or her past work, the burden of proof shifts to
the Commissioner to prove, first, that the claimant retains the
residual functional capacity to perform other kinds of work,
and, second, that other such work exists in substantial
numbers in the national economy. See Nevland v. Apfel, 204
F.3d 853, 857 (8th Cir. 2000). A claimant’s residual functional
capacity is a medical question. See id. at 858.
Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). “If a claimant fails to meet the criteria
at any step in the evaluation of a disability, the process ends and the claimant is
determined to be not disabled.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)
(quotation omitted).
In this case, the ALJ followed the appropriate sequential analysis. The ALJ
reviewed the record and determined Motley had not engaged in any type of substantial and
gainful work activity since January 22, 2007, the application date (AR. 10). Next, the ALJ
found Motley had impairments considered severe under the Social Security regulations
including: bipolar disorder, post-traumatic stress disorder, and asthma (AR. 10).
At step three, the ALJ found that Motley’s medically determined impairments, either
singly or collectively, do not equal one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926) (AR. 27).

Specifically relevant to Motley’s appeal, the ALJ

determined Motley’s mental impairments, either singly or collectively, do not equal the
criteria of the listings (AR. 10). The ALJ determined Motley’s mental impairments caused
mild restrictions in activities of daily living; mild difficulties in maintaining social functioning;
13

moderate difficulties in maintaining concentration, persistence or pace; and no episodes
of decompensation (AR. 11). Because Motley did not have at least two marked limitations
or one marked limitation and repeated episodes of decompensation, the ALJ found the
“paragraph B” criteria were not met (AR. 11). Similarly, the ALJ found the evidence did not
establish the presence of “paragraph C” criteria (AR. 11).
The ALJ proceeded to determine Motley’s residual functional capacity (RFC) (AR.
11-14). The ALJ explicitly stated she considered all of Motley’s symptoms and the extent
to which the symptoms could reasonably be accepted as consistent with the objective
medical and other evidence, based on the requirements of 20 C.F.R. §§ 404.1529 and
416.929, and Social Security Rulings (SSR) 96-4p and 96-7p (AR. 11). The regulations
and SSRs cited by the ALJ list factors to consider when determining the claimant’s
credibility. The ALJ found that Motley’s “medically determinable impairments could
reasonable be expected to produce the alleged symptoms, but that [her] statements
concerning the intensity, persistence, and limiting effects of these symptoms are not
entirely credible” (AR. 13). Specifically, the ALJ noted Motley “has not received treatment
consistent with her subjective complaints” (AR. 13). Moreover, the ALJ noted Motley
reported improvement related to her medications with respect to her depression, sleep, and
auditory hallucinations, and reported working in December 2008 (AR. 13).
In addition to the findings about Motley’s credibility, the ALJ considered the opinions
of the professionals who evaluated and treated Motley during the pertinent time period.
The ALJ considered the opinions of Ms. Berry and Ms. Eaton as “other sources” pursuant
to the guidelines of SSR 06-3p (AR. 41-43). The ALJ accorded little weight to Ms. Berry’s
and Ms. Eaton’s medical source statements, finding their opinions inconsistent, absent of
“specific work-related limitations or the medical evidence to support the cause for the
limitations,” and not from “acceptable medical sources under Social Security Regulations”
(AR. 13-14).
Based on the ALJ’s consideration of the record, the ALJ found Motley has the RFC
to:
lift and carry 50 pounds occasionally and 25 pounds
frequently, sit, stand, and walk for six hours in an 8-hour day,
and should avoid concentrated exposure to dusts, gases, and
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fumes. She can perform simple routine tasks, low stress jobs,
and work at a regular pace with no production goals.
(AR. 11).
At step four, the ALJ found Motley has no past relevant work (AR. 14). At the last
step, the ALJ concluded Motley could perform other work existing in significant numbers
in the national economy (AR. 14-15). Therefore, the ALJ found Motley is not disabled and
has not been under a disability from January 22, 2007, the date her application was filed,
through the date of the ALJ’s decision (AR. 15).

STANDARD OF REVIEW
A district court is given jurisdiction to review a decision to deny disability benefits
according to 42 U.S.C. § 405(g). A district court is to affirm the Commissioner’s findings
if “supported by substantial evidence on the record as a whole.” Johnson v. Astrue, 628
F.3d 991, 992 (8th Cir. 2011).

Substantial evidence is defined as less than a

preponderance, but enough that a reasonable mind might accept it as adequate to support
a decision. Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010); see also Minor v.
Astrue, 574 F.3d 625, 627 (8th Cir. 2009) (noting “the ‘substantial evidence on the record
as a whole’ standard requires a more rigorous review of the record than does the
‘substantial evidence’ standard”). “If substantial evidence supports the decision, then [the
court] may not reverse, even if inconsistent conclusions may be drawn from the evidence,
and even if [the court] may have reached a different outcome.” McNamara v. Astrue, 590
F.3d 607, 610 (8th Cir. 2010) (alteration added). “[I]t is the court’s duty to review the
disability benefit decision to determine if it is based on legal error.” Nettles v. Schweiker,
714 F.2d 833, 835-36 (8th Cir. 1983). The court reviews questions of law de novo. See
Miles v. Barnhart, 374 F.3d 694, 698 (8th Cir. 2004). Findings of fact are considered
conclusive if supported by substantial evidence on the record as a whole. See Nettles,
714 F.2d 835; Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir. 2007). Furthermore, “[the
court] defer[s] to the ALJ’s determinations regarding the credibility of testimony, so long as
they are supported by good reasons and substantial evidence.” Pelkey, 433 F.3d at 578
(quoting Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (alteration added)).
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DISCUSSION
A.

Weight of Evidence
Motley contends the ALJ improperly rejected the opinions of her APRN, Ms. Berry,

and her therapist, Ms. Eaton, failing to give good reasons for discounting those opinions,
and giving preference to the opinion of nonexamining state agency psychologist, Dr.
Schmechel. See Filing No. 21 - Brief p. 10; Filing No. 27 - Reply p. 7. Motley argues the
ALJ should have accorded more weight to the opinions of Ms. Berry and Ms. Eaton
because they based those opinions on a series of treatment visits over a period of time,
and as such, were “in the best position to offer an opinion as to [Motley’s] ability to perform
work-related activities on a sustained basis,” whereas Dr. Schmechel “had only a small
portion of the record available to her.” See Filing No. 21 - Brief p. 16; Filing No. 27 - Reply
p. 7.
The SSA recognizes two types of sources for evidence that may be used as
evidence of an impairment or the severity of an impairment: “acceptable medical sources”
and “other sources.” See 20 C.F.R. § 404.1513. Therapists and nurse-practitioners are
listed under “other sources” and are not considered “acceptable medical sources.” 20
C.F.R. § 404.1513(d)(1); see also Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir.
2005). An “other source” opinion may by used to show the severity of an impairment and
how it affects the individual’s ability to function, but may not be used to establish an
impairment. See 20 C.F.R. § 404.1513; SSR 06-3p. An acceptable medical source that
is also a treating source may be entitled to controlling weight. See SSR 06-3p. However,
“[i]n determining what weight to give ‘other medical evidence,’ the ALJ has more discretion
and is permitted to consider any inconsistencies found within the record.” Raney, 396 F.3d
at 1010 (citing 20 C.F.R. § 416.927(d)(4)).
Ms. Phillips, an APRN, and Ms. Eaton, a therapist, do not qualify as acceptable
medical sources, nor do their opinions constitute medical opinions under the regulations.
See 20 C.F.R. § 416.927(a)(2) (defining medical opinions as “statements from physicians
and psychologists or other acceptable medical sources”). The ALJ correctly considered
Ms. Berry and Ms. Eaton to be “other sources” rather than treating sources or acceptable
medical sources. As such, the ALJ is required to consider their opinions when evaluating
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the severity of Motley’s impairments and the effect her impairments have on her ability to
work. See 20 C.F.R. § 404.1513; SSR 06-3p. While the ALJ is required to consider the
opinions of Ms. Berry and Ms. Eaton, she is not required to accept them or assign them
great weight. The ALJ has the discretion to reject or discredit their opinions if they are
inconsistent with other evidence in the record. Lacroix v. Barnhart, 465 F.3d 881, 887
(8th Cir. 2006).
Motley saw Ms. Berry regularly for medication management from October 2007
through March 2009; the record includes progress notes from eleven such appointments
during that period of time (see, e.g., AR. 223-242). According to her medical source
statement, Ms. Eaton saw Motley for 31 therapy sessions from May 2007 through April
2009, although there are no treatment notes from those sessions in the record (AR. 250).
Although the ALJ makes reference to the medical source statements provided by both Ms.
Berry and Ms. Eaton, the discussion of those opinions is very limited with the ALJ giving
them little weight (AR. 13-14).

The ALJ explained her decision by pointing out

inconsistencies between Ms. Berry’s ratings, indicating marked limitations in several areas
of functioning, and her statements that Motley’s “depression was manageable and
hallucinations were reduced” (AR. 14).
The court’s review of the record also shows a striking inconsistency between
assessments of Motley’s restriction of activities of daily living completed within a week of
each other, with Ms. Eaton finding no limitation and Ms. Berry finding a marked limitation
(AR. 252, 259). Finally, the ALJ correctly noted “Ms. Eaton and Ms. Berry are not
acceptable medical sources under Social Security Regulations” (AR. 14). The court finds
the ALJ’s determination of the relative weight to accord to the opinions of Dr. Schmechel,
Ms. Berry, and Ms. Eaton, is supported by substantial evidence on the record as a whole.

B.

Substantial Evidence - RFC
Motley suggests the ALJ’s RFC finding with respect to her mental limitations is not

supported by substantial evidence on the record as a whole. See Filing No. 21 - Brief p.
9, 17. Motley argues, that by focusing on the physical impairments and largely ignoring her
mental impairments, the ALJ’s written decision contains very little discussion of the basis
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for her RFC finding regarding Motley’s mental health limitations. Id. at 17. Motley further
argues the ALJ’s RFC assessment is not supported by substantial evidence as it was
based largely on the opinion of a state agency reviewing physician, Dr. Schmechel. Id. at
16. Specifically, Motley notes Dr. Schmechel provided an opinion about Motley’s functional
capacity in July of 2007. Id.; see AR. 203-219. By virtue of timing, Dr. Schmechel was
unable to consider the treatment progress notes of Ms. Berry and the medical source
statements of Ms. Berry and Ms. Eaton. See Filing No. 20 - Brief p. 14. For these
reasons, Motley contends the record lacks substantial evidence to support the RFC finding
because it is based only on the opinion of a non-examining physician and not the full
record. Id. at 17.
“The ALJ should determine a claimant’s RFC based on all the relevant evidence,
including the medical records, observations of treating physicians and others, and an
individual’s own description of his [or her] limitations.” Lacroix, 465 F.3d at 887 (quoting
Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)). It is the claimant’s burden,
rather than the Commissioner’s, to prove the claimant’s RFC. Hurd v. Astrue, 621 F.3d
734, 738 (8th Cir. 2010). “In evaluating a claimant’s RFC, the ALJ is not limited to
considering medical evidence, but is required to consider at least some supporting
evidence from a professional.” Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003);
see Steed v. Astrue, 524 F.3d 872, 875 (8th Cir. 2008). “The ALJ bears the primary
responsibility for determining a claimant’s RFC and because RFC is a medical question,
some medical evidence must support the determination of the claimant’s RFC.” Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
“State agency medical . . . consultants . . . are highly qualified physicians . . . who
are also experts in Social Security disability evaluation. Therefore, [ALJs] must consider
findings and other opinions of State agency medical . . . consultants . . . as opinion
evidence.” 20 C.F.R. § 404.1527(f)(2)(i). While “there are circumstances in which relying
on a non-treating physician’s opinion is proper[,]” generally, “opinions of non-treating
practitioners who have attempted to evaluate the claimant without examination do not
normally constitute substantial evidence on the record as a whole.” Vossen, 612 F.3d at
1016. An ALJ does not err by considering the opinion of a State agency medical
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consultant along with the medical evidence as a whole. Casey v. Astrue, 503 F.3d 687,
694 (8th Cir. 2007).
The ALJ’s RFC finding properly included Motley’s credible limitations. Motley
argues “[t]he mental limitations the ALJ incorporates in her RFC do not reflect [Motley’s]
limitations as shown by the full record and are not stated in terms of work-related functions
as required by SSR 96-8p.” See Filing No. 21 - Brief p. 20-21. The court agrees with
Motley’s contention that the majority of the records from her mental health treatment were
not available for review when the non-examining medical consultant, Dr. Schmechel, made
her findings. In fact, Motley did not report auditory or visual hallucinations to those service
providers until after Dr. Schmechel’s review. However, Motley incorrectly suggests the
ALJ did not consider that later acquired evidence when determining Motley’s RFC. The
ALJ has a duty to fully and fairly develop a record; however, the she does not have to
discuss every piece of evidence presented. Wildman v. Astrue, 596 F.3d 959, 966 (8th
Cir. 2010). “Moreover, [a]n ALJ’s failure to cite specific evidence does not indicate that
such evidence was not considered.” Id. (alteration in original) (quoting Black v. Apfel,
143 F.3d 383, 386 (8th Cir. 1998)).
Contrary to Motley’s argument, the ALJ did consider treatment records relating to
Motley’s mental health issues that postdated Dr. Schmechel’s review. The ALJ described
Motley’s daily activities by noting, among other things, Motley was working in December
2008 (AR. 13). Additionally, the court’s review of the record shows that Dr. Schmechel’s
July 11, 2007, opinion was consistent with the medical evidence as of that date. In any
event, the later medical source statements of Ms. Berry and Ms. Eaton were not entitled
to significant weight, as discussed in the previous section, and “the ALJ [is] not obligated
to include limitations from opinions [she] properly disregarded.” Wildman, 596 F.3d at 969.
“Impairments that are controllable or amenable to treatment do not support a finding
of disability.” Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009) (citing Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)). The same is true even where the symptoms
may sometimes worsen, requiring adjustments in medication as long as the impairment is
generally controllable. Davidson, 578 F.3d at 846. The highs and the lows associated
with Motley’s bipolar disorder are apparent in the court’s review of the record. However,
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the court also notes Ms. Berry fairly consistently assessed Motley as stable with positive
responses to her prescribed medications (AR. 223-240).
The ALJ fully and properly evaluated the evidence in the record when determining
Motley’s RFC. While Motley may be able to point to evidence that could support a finding
of disability, this court “may not reverse [the ALJ’s decision] because substantial evidence
exists in the record that would have supported a contrary outcome.” McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). That is, Motley’s RFC, as determined by the ALJ, is the
product of the ALJ’s responsibility to weigh and reconcile potentially conflicting evidence
in the record and the dutiful fulfillment of that role is not to be overturned or superseded
by the court. 20 C.F.R. § 416.927(c)(2); McNamara, 590 F.3d at 610. As discussed in
detail above,. Therefore, the court finds that, having properly considered the evidence in
the record, sufficient evidence supports the ALJ’s findings with respect to Motley’s RFC.

CONCLUSION
For the reasons discussed, the court concludes the ALJ’s decision, which
represents the final decision of the Commissioner of the SSA, does not contain the errors
alleged by Motley. Specifically, substantial evidence in the record supports the ALJ’s RFC
finding with respect to Motley’s mental limitations, and the ALJ’s decision to give little
weight to the opinions of Motley’s APRN and therapist. Substantial evidence in the record
as a whole supports the ALJ’s denial of benefits. Accordingly, the Commissioner’s
decision is affirmed. Reversal or remand is not warranted.

IT IS ORDERED that the decision of the Commissioner is affirmed, the appeal is
denied, and a separate Judgment in favor of the defendant will be entered.
DATED this 3rd day of May, 2011.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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