Powell v. Commissioner of Social Security

Filing 36

OPINION AND ORDER REVERSING the decision of the Commissioner and REMANDING the case for further proceedings in accordance with this Opinion. Clerk directed to enter judgment in favor of Pla Terence Powell and against Dft Commissioner of Social Security. Signed by Magistrate Judge Roger B Cosbey on 4/22/2014. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TERENCE POWELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Cause No. 1:13-CV-51

OPINION AND ORDER
Plaintiff appeals to the district court from a final decision of the Commissioner of Social
Security (“Commissioner”) denying his application under the Social Security Act (the “Act”) for
a period of disability and Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).1 (Docket # 1.) For the following reasons, the Commissioner’s decision will be
REVERSED, and the case will be REMANDED for further proceedings in accordance with this
Opinion.
I. PROCEDURAL HISTORY
Powell initially applied for SSI and DIB in October 2007, alleging that he became
disabled on June 3, 1972. (Tr. 281-88.) Powell was last insured for DIB on June 30, 2008;
therefore, with respect to his DIB application, he must establish that he was disabled as of that
date. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997) (explaining that a claimant
must establish that he was disabled as of his date last insured in order to recover DIB benefits).
After an administrative hearing, an administrative law judge rendered an unfavorable

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All parties have consented to the Magistrate Judge. (Docket # 13); see 28 U.S.C. § 636(c).

decision to Powell on January 26, 2010, and the Appeals Council denied his request for review.
(Tr. 118-31, 219-23.) Powell appealed the denial to this Court; ultimately, the case was reversed
and remanded for a new hearing because the hearing tape contained too much inaudible
testimony. (Tr. 153-56.)
On March 21, 2011, before a ruling was issued by the Court on his appeal, Powell filed
new applications for DIB and SSI, which were then consolidated with his prior application. (Tr.
19, 252-53.) The Commissioner denied his application initially and upon reconsideration, and
Powell requested an administrative hearing. (Tr. 226-50.) On March 16, 2012, a hearing was
conducted by Administrative Law Judge Warnecke Miller (the “ALJ”), at which Powell (who
was represented by counsel) and Marie Kieffer, a vocational expert (“VE”), testified (Tr. 54110); Powell then amended his alleged onset date to September 25, 2007 (Tr. 343-47).
On June 14, 2012, the ALJ rendered an unfavorable decision to Powell, concluding that
he was not disabled because his substance use disorder was a contributing factor material to the
determination of disability, and he would not be disabled if he stopped the substance use. (Tr.
19-43.) The Appeals Council denied Powell’s request for review, making the ALJ’s decision the
final decision of the Commissioner. (Tr. 1-9, 199-223.)
Powell filed a complaint with this Court on February 22, 2013, seeking relief from the
Commissioner’s final decision. (Docket # 1.) In this appeal, Powell contends that the ALJ: (1)
improperly evaluated the April 2012 medical source statement drafted by Ms. Karen Lothamer,
his treating psychiatric nurse practitioner, and countersigned by Dr. Vijay Varma, a psychiatrist;
(2) improperly evaluated the drug addiction aspects of the case; and (3) lacked a proper
foundation for the number of jobs cited in her step five finding. (Opening Br. of Pl. in Social

2

Security Appeal Pursuant to L.R. 7.3 (“Opening Br.”) 18-25.)
II. FACTUAL BACKGROUND2
A. Background
At the time of the ALJ’s decision, Powell was forty-five years old (Tr. 348), had a high
school education and taken some college classes (Tr. 63, 383), and possessed relevant work
experience as a material handler, polish/buffer, hand packager, and forklift driver (Tr. 31, 533).
Powell alleges that he became disabled on September 25, 2007, due to bipolar I disorder most
recent episode depressed, severe with psychotic features; personality disorder; osteoarthritis;
anterior cruciate ligament (“ACL”) tear of the left knee; hypertension; disorders of the spine;
obesity; and diabetes mellitus. (Opening Br. 2.) Because Powell challenges only the ALJ’s
findings concerning his mental impairments, the Court will focus on the evidence pertaining to
his mental, rather than physical, limitations.
At the hearing, Powell testified that because he hears voices in his head, he has a hard
time dealing with people and prefers to stay at home where he feels safe. (Tr. 87.) He spends
most of his time watching television. (Tr. 75-77, 87.) He does go to the grocery, but only for a
brief period before he feels the need to leave. (Tr. 79-80.) Powell lives with a friend, and
although they occasionally eat and watch television together, their contact is otherwise limited.
(Tr. 75-79.) Socially, Powell talks with his mother daily by telephone, visits with his neighbor
on a frequent basis, and infrequently talks with his daughter by telephone. (Tr. 80-82, 84-85.)
Powell testified that he cannot keep jobs because of his problems with supervisors; he does not
like being confronted while trying to work. (Tr. 72, 88-91.)
2

In the interest of brevity, this Opinion recounts only the portions of the 1,283-page administrative record
necessary to the decision.

3

Powell stated that he used cocaine from the time he was nineteen until he was thirty to
thirty-five (which is between 1997 and 2002), and had a relapse in 2003 or 2004. (Tr. 82-83, 85.)
He reported that he used marijuana on a daily basis, but stopped in 2000 (Tr. 86); he testified that
he has not used drugs since his alleged onset date (Tr. 83).
B. Medical Evidence
In December 2006, Powell was evaluated by Danielle Wardell, a clinician at Park Center,
due to increasing anger issues. (Tr. 599-604.) She reported that Powell was overwhelmed by
symptoms of distress including delusions (asserting that there is a chip inside his head enabling
others to control and manipulate him), drug use, and hallucinations (claiming that he hears
voices inside his head that tell him to use drugs); and that these symptoms leave him unable to
attend to work, housing, and his relationships. (Tr. 599.) Powell reported using crack within the
past month, and his girlfriend said that he had used crack every day during the preceding month.
(Tr. 599.) Powell stated that his psychotic symptoms started about fifteen years ago before he
started using drugs; Ms. Wardell, however, observed that there was no mention of psychotic-like
symptoms in his prior Park Center records. (Tr. 602.) She noted Powell’s extensive drug history
and found him indifferent to treatment due to his delusions, religious thinking pattern, and
paranoia. (Tr. 599-602.) She assigned him a Global Assessment of Functioning (“GAF”) score
of 35 and diagnoses of cocaine dependence and cocaine-induced psychotic disorder with
delusions and hallucinations, and rule-out schizophrenia, paranoid type.3 (Tr. 603.)

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GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed., Text Rev.
2000). A GAF score of 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at
times illogical, obscure, or irrelevant) or a major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., avoids friends, neglects family, and is unable to work). Id. A GAF
score of 41 to 50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)

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The following month, Dr. Nilda Salazar, a psychiatrist, performed a clinical assessment
at Park Center. (Tr. 597-98.) Powell reported a long history of drug use, with cocaine being his
preferred drug; that drugs help him relax; that he believes there is a chip implanted in his head;
and that he hears voices inside his head. (Tr. 597.) Dr. Salazar diagnosed him with a substanceinduced psychotic disorder, cocaine dependence, cannabis dependence, and personality disorder
not otherwise specified (“NOS”); she assigned him a GAF of 65 and advised him to reconsider
his drug use, which was leading to auditory hallucinations and paranoia. (Tr. 598.)
In November 2007, James White, a clinician at Park Center, evaluated Powell. (Tr. 70509.) Mr. White reported that Powell denied having problems, refused assistance, was incoherent
and delusional, had suspicious and blaming thought content, and was experiencing
hallucinations. (Tr. 705.) Mr. White indicated that Powell had interpersonal conflicts at home,
work, and in the community; was talking abusively to others; felt isolated from his family and
friends; and had difficulty maintaining relationships with others. (Tr. 706.) Powell was assigned
a GAF of 35 and diagnoses of amphetamine-induced mood disorder, cocaine dependence,
cannabis dependence, and personality disorder NOS. (Tr. 707.)
That same month, Ms. Lothamer, a psychiatric nurse practitioner, conducted a mental
status exam and found Powell had distractible behavior, a detached attitude, irritable mood, flat
affect, coherent thought form, delusional and blaming thought content, and heard voices. (Tr.
739-40.) Ms. Lothamer, or occasionally one of her peers, conducted mental status exams on

or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id.
A GAF score of 51 to 60 reflects moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
co-workers). Id. And, a GAF score of 61 to 70 reflects some mild symptoms or some difficulty in social,
occupational, or school functioning, but “generally functioning pretty well.” Id.

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Powell on a nearly monthly basis from April 2007 to October 2011. (Tr. 606-11, 739-41, 746-49,
754-56, 765-67, 795-98, 800-13, 827-32, 836-40, 926-29, 942-45, 990-94, 1008-12, 1032-36,
1041-45, 1053-57, 1074-82, 1150-54, 1228-37, 1253-57.) The exams typically lasted fifteen to
thirty minutes, were related to Powell’s medication management, and were approved by Dr.
Varma, a psychiatrist, or one of his peers. (See, e.g., 746-49.) Because most of the mental status
exams contain similar information–for example, that Powell was irritable, had a flat affect, had
delusions in thought content, and agitated behavior–this Opinion only recounts the remarkable
portions.
In December 2007, Mr. White performed a psychiatric status review (countersigned by
Dr. R. Mumtaz) at the request of Social Security. (Tr. 649-55.) Powell was assigned a GAF of
50 and diagnoses of bipolar disorder most recent episode depressed, severe with psychotic
features; intermittent explosive disorder; and personality disorder NOS. (Tr. 649.) Powell
reported a history of physical, emotional, and sexual abuse growing up; little interest in other
people; and that he had used drugs as a way of coping with stress, but had stopped using in 1999.
(Tr. 651.) His behavior was appropriate, but at times he appeared agitated; insight and judgment
were fair to poor; mood was depressed and angry; and thought content was blaming with a
hopeless or worthless theme. (Tr. 651.) Powell stated that he has a hard time focusing while
reading; his mind constantly wanders; and although he does not have any problems relating to
others, he chooses to limit his social interactions. (Tr. 653-54.) He also reported that he has
problems taking instructions, anger towards supervisors, and fears that he will “go off” on
others. (Tr. 654.)
In December 2007, Joelle Larsen, Ph.D., a state agency psychologist, reviewed Powell’s

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record and completed a mental residual functional capacity (“RFC”) assessment and psychiatric
review technique. (Tr. 677-94.) She found Powell was moderately limited in his ability to
understand, remember, and carry out detailed instruction; maintain attention and concentration
for extended periods; interact appropriately with the general public; accept instructions and
respond appropriately to criticism from supervisors; and get along with coworkers or peers
without distracting them or exhibiting behavioral extremes. (Tr. 677-79.) He was not
significantly limited in the fourteen remaining categories. (Tr. 677-79.) Dr. Larsen found Powell
not credible in regard to his self-reported drug and alcohol use because he claimed that he
stopped using all substances in 1999, yet received diagnoses of cocaine and cannabis dependence
as late as January 2007. (Tr. 679.) She assigned him a GAF of 50. (Tr. 679.) Dr. Larsen could
not determine the extent of the underlying issues on functioning due to Powell’s continued drug
use. (Tr. 679.)
On the psychiatric review technique, Dr. Larsen found Powell had bipolar disorder;
intermittent explosive disorder; cocaine dependence; cannabis dependence; and past substanceinduced psychotic disorder. (Tr. 684-89.) Powell had a mild restriction of activities of daily
living and moderate difficulties in maintaining social functioning and concentration, persistence,
or pace. (Tr. 691.)
On January 30, 2008, Ms. Judith Brunow, a clinician at Park Center, conducted an
addiction assessment (countersigned by Vivian Hernandez, Ph.D.). (Tr. 699-703.) Powell stated
that his drug of choice was cocaine, but he had not used it in the past five years. (Tr. 699.)
Powell also stated that he had last used marijuana in December 2007, but when advised that he
would have to provide a urine sample, admitted that he had smoked marijuana within the past

7

forty-eight hours and was using daily. (Tr. 699.) He stated that he did not intend to quit smoking
marijuana because it helps him control his social anxieties in a manner his medications do not.
(Tr. 699.) Powell was assigned a GAF of 35 and diagnoses of intermittent explosive disorder;
bipolar I disorder most recent episode depressed, severe with psychotic features; cocaine
dependence; cannabis dependence; and personality disorder NOS. (Tr. 700.)
In March and April 2008, Powell told Ms. Lothamer and her colleague that he was
hearing voices in his head. (Tr. 767, 795-96.) In June 2008, Ms. Lothamer indicated in a report
to Allen County Superior Court that Powell continued to show improvement, but progress is
slow, and she would consider him unemployable at that time. (Tr. 793.) In April 2009, Sarah
Wilson, a clinician at Park Center, filled out a recertification review (countersigned by Dr.
Hernandez). (Tr. 813-17.) She assigned Powell a GAF of 35 and diagnoses of bipolar I disorder
most recent episode depressed, severe with psychotic features; intermittent explosive disorder;
cocaine dependence; cannabis dependence; and personality disorder NOS. (Tr. 813.) October
2009 and January 2010 recertification reviews contained identical findings. (Tr. 832-35, 108487.)
In November 2009, Ms. Lothamer completed a mental impairment questionnaire for
Powell. (Tr. 836-40.) She assigned him a current GAF of 50 and a highest past-year GAF of 35;
she indicated diagnoses of bipolar I, cocaine and cannabis dependence, and personality disorder
NOS. (Tr. 836.) On the mental abilities and aptitude to perform unskilled work questionnaire,
Ms. Lothamer found that Powell was unable to meet competitive standards in five of the sixteen
categories and had no useful ability to function in nine of the sixteen categories. (Tr. 837-38.)
On the mental abilities and aptitude to perform semi-skilled and skilled work questionnaire, Ms.

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Lothamer found he had no useful ability to function in all four categories. (Tr. 838.) On the
mental abilities and aptitude to do particular types of jobs questionnaire, Ms. Lothamer found
Powell was unable to meet competitive standards in one of the five categories, and had no useful
ability to function in three of the five categories. (Tr. 838.) In regard to functional limitation,
Powell had marked limitations in activities of daily living and in maintaining concentration,
persistence or pace; an extreme difficulty in maintaining social functioning; and three repeated
episodes of decompensation within a twelve-month period, each of at least two weeks duration.
(Tr. 839.) Finally, Ms. Lothamer opined that Powell’s impairments would cause him to miss
more than four days of work per month. (Tr. 840.)
In February 2010, Ms. Brunow performed an insight diagnostic evaluation. (Tr. 106268.) Powell acknowledged his addiction problem and his need to stay sober; he had been sober
for a year except for a drink on New Year’s and tested negative for all substances (except
Opiates, but he had a prescription for Vicodin). (Tr. 1062.) He was currently on probation
stemming from an attempted theft conviction in December 2008, and had been directed to get a
drug and alcohol assessment because he was using cocaine on the day of the offense; Powell
states that this was the first time he had used cocaine in a year. (Tr. 1064, 1066.) Powell stated
that although he is less angry, he still has some difficulty with hearing voices. (Tr. 1063.)
On mental status exam, Powell worried excessively; was incoherent and delusional; and
had poor judgment, repetitive speech, rigid thinking, loosening of thought, suspicious and
blaming thought content, hallucinations, and a religious preoccupation. (Tr. 1064.) Powell was
assigned a GAF of 35 and diagnoses of bipolar I disorder most recent episode depressed, severe
with psychotic features; intermittent explosive disorder; cocaine dependence, in full sustained

9

remission; and personality disorder NOS. (Tr. 1067.)
In March 2011, Powell’s girlfriend reported to Ms. Lothamer that Powell “goes off less,”
but stays to himself. (Tr. 1150.) On mental status exam, Powell had a depressed mood, detached
attitude, distractible behavior, and flat affect. (Tr. 1150-52.) A May 2011 treatment plan
indicated that Powell was maintaining well and stable, was attending therapy regularly with good
interest and participation, and had improved anger management. (Tr. 1145-47.)
In June 2011, Judy Woodward, a clinician at Park Center, completed a psychiatric status
report (countersigned by Dr. Hernandez). (Tr. 1125-31.) She assigned Powell a GAF of 51 and
diagnoses of bipolar I disorder, most recent episode depressed, severe, with psychotic features;
intermittent explosive disorder; cocaine dependence; cannabis dependence; and personality
disorder NOS. (Tr. 1125.) Powell reported feeling helpless, hopeless, and worthless; was
unable to focus and concentrate; had constantly heard voices for twenty years with no periods of
remission; and could not trust himself around people because of his explosive tendencies. (Tr.
1127.)
In June 2011, Michael D. Scherbinksi, Ph.D., conducted a psychological evaluation at the
request of Social Security. (Tr. 1133-38.) Powell’s speech and attention were appropriate, but
difficulties with concentration and slow mental processing were observed. (Tr. 1133.) In regard
to ability to engage in gainful employment, Powell was able to communicate effectively,
demonstrate appropriate social interaction skills, work to the best of his ability, and was
compliant with all requests. (Tr. 1137.) Dr. Scherbinksi opined that Powell’s ability would
likely allow him to potentially gain and maintain employment, but due to his reported mental
health concerns, he may have difficulty consistently meeting work demands. (Tr. 1137.) He

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assigned Powell a GAF of 50 and diagnoses of schizophrenia, paranoid type (provisional);
cocaine dependence, sustained full remission; and alcohol dependence, sustained full remission.
(Tr. 1137.)
The next month, July 2011, Kari Kennedy, Psy.D, a state agency psychologist, reviewed
Powell’s record and concluded that he had a mild restriction of activities of daily living and
moderate limitations in maintaining social functioning and concentration, persistence, or pace.
(Tr. 1181-97.) In an RFC assessment, Dr. Kennedy found that Powell was either moderately
limited or not significantly limited in each of the twenty categories. (Tr. 1195-96.) She
concluded that he was able to understand, carry out, and remember simple instructions; make
judgments commensurate with functions of unskilled work; respond appropriately to brief
supervision and interactions with coworkers; deal with changes in a routine work setting; may
prefer to work in a position that requires minimal interaction with others and with a supportive,
rather than critical, supervisor; and appears capable of unskilled work. (Tr. 1197.)
In April 2012, Ms. Lothamer completed a medical source statement (countersigned by
Dr. Varma). (Tr. 1264-69.) She indicated that she saw Powell at a frequency consistent with the
relevant accepted medical practice and identified his symptoms as decreased motivation, lack of
focus and concentration, and hearing voices. (Tr. 1264.) Ms. Lothamer indicated that if Powell
returned to full-time work, his mental functioning would worsen due to his agitation around
others (Tr. 1265); thus, he would be limited to working alone or apart from others (Tr. 1267).
She also found that without including any problems related to substance abuse, Powell would
miss more than three days of work a month and have difficulty getting along with others due to
his issues with agitation and motivation. (Tr. 1266-67.) She further opined that without

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including any problems from substance abuse, Powell would have difficulty with attention and
concentration in unskilled work and would stay on task only 70 to 75% of the workday; she
attributed this limitation to his past substance abuse and his difficulty being around others. (Tr.
1266-67.) When asked whether she thought Powell would still have the foregoing limitations
despite any problems he has had with substance abuse, Ms. Lothamer stated that she was “not
sure,” because his “substance abuse occurred before [his] symptoms.” (Tr. 1269.)
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
The Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.

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IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform his past work; and (5)
whether the claimant is incapable of performing work in the national economy.4 See Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. An
affirmative answer leads either to the next step or, on steps three and five, to a finding that the
claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer
at any point other than step three stops the inquiry and leads to a finding that the claimant is not
disabled. Id. The burden of proof lies with the claimant at every step except the fifth, where it
4

Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R.
§§ 404.1520(e), 416.920(e).

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shifts to the Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On June 14, 2012, the ALJ rendered her decision. (Tr. 19-43.) She found at step one of
the five-step analysis that Powell had not engaged in substantial gainful activity since the alleged
onset date, and, at step two, that he had the following severe impairments: bipolar disorder,
intermittent explosive disorder, personality disorder, cocaine dependence, cannabis dependence,
osteoarthritis, hypogonadism, hyperlipidemia, ACL tear at the left knee, hypertension, disorders
of the spine, obesity, and diabetes mellitus. (Tr. 22.) At step three, the ALJ determined that
Powell’s impairment or combination of impairments did not meet or medically equal a listing.
(Tr. 23-25.) Before proceeding to step four, the ALJ determined that based on all of the
impairments, including substance use disorders, Powell had the following RFC:
[T]he claimant has the residual functional capacity to perform sedentary work . . .
with additional limitations. Claimant can lift and/or carry eight pounds
frequently. Claimant can lift and/or carry ten pounds occasionally. Claimant can
stand and/or walk two hours out of an eight-hour shift. Claimant can sit for six
hours during the eight-hour work shift. Claimant can occasionally climb ramps or
stairs, but can never climb ladders, ropes or scaffolds. Claimant can occasionally
balance, stoop, kneel, crouch, and/or crawl. With respect to his work
environment, he must avoid concentrated exposure to extreme cold and/or heat
and hazards such as the operational control of moving machinery, unprotected
heights, and slippery/uneven surfaces. Claimant needs to utilize a cane, but only
when walking. The claimant can tolerate only superficial interactions with the
public, supervisors, and co-workers. Based upon a moderate difficulty with
concentration, claimant cannot understand, remember, or carry out detailed
instructions or tolerate sudden or unpredictable workplace changes. He is unable
to attend employment as scheduled, missing three or more days of work per
month on a consistent basis.
(Tr. 25-26).
Moving to step four, the ALJ found that Powell was unable to perform his past relevant
work. (Tr. 31.) Based on the RFC, the VE’s testimony, and Powell’s substance use disorders,
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the ALJ then determined at step five that there are no jobs that exist in significant numbers in the
national economy that Powell can perform. (Tr. 31.)
Because of Powell’s substance use disorder, the ALJ then reevaluated Powell as to how
he would perform if he stopped the substance use. (Tr. 32.) At step two, the ALJ found that
absent his drug use, Powell had the following severe impairments: hypogonadism,
hypertriglyceridemia, depression, gastroesophageal reflux disease, left knee osteoarthritis,
disorders of the spine, diabetes mellitis, obesity, bipolar disorder, intermittent explosive disorder,
cocaine dependence in remission, cannabis dependence in remission, personality disorder, and
schizophrenia. (Tr. 32.) At step three, the ALJ determined that if Powell stopped the substance
use, he would not have an impairment or combination of impairments that meets or medically
equal a listing. (Tr. 33-34.) Before proceeding to step four, the ALJ determined that if Powell
stopped the substance use, he would have the following RFC:
[T]he claimant would have the residual functional capacity to perform sedentary
work . . . with additional limitations. Claimant can lift and/or carry eight pounds
frequently. Claimant can lift and/or carry ten pounds occasionally. Claimant can
stand and/or walk two hours out of an eight-hour shift. Claimant can sit for six
hours during the eight-hour work shift. Claimant can occasionally climb ramps or
stairs, but can never climb ladders, ropes or scaffolds. Claimant can occasionally
balance, stoop, kneel, crouch, and/or crawl. With respect to his work
environment, he must avoid concentrated exposure to extreme cold and/or heat
and hazards such as the operational control of moving machinery, unprotected
heights, and slippery/uneven surfaces. Claimant needs to utilize a cane, but only
when walking. The claimant can tolerate only superficial interactions with the
public, supervisors, and co-workers. Based upon a moderate difficulty with
concentration, claimant cannot understand, remember, or carry out detailed
instructions or tolerate sudden or unpredictable workplace changes.
(Tr. 34.)
Based on this RFC and the VE’s testimony, the ALJ concluded at step four that if Powell
stopped the substance use, he would be unable to perform any of his past relevant work. (Tr. 42.)
15

The ALJ found at step five that if Powell stopped his substance use, there would be a significant
number of jobs within the economy that he could perform, including addresser, surveillance
monitor, and document copier or preparer. (Tr. 42.) The ALJ then concluded that Powell’s
substance use disorder is a contributing factor material to the determination of disability, and
therefore, he has not been disabled within the meaning of the Act at any time from the alleged
onset date through the date of the decision. (Tr. 42-43.) Accordingly, Powell’s claims for DIB
and SSI were denied. (Tr. 43.)
C. The ALJ’s Discounting of Ms. Lothamer’s April 2012 Medical
Source Statement Is Not Supported by Substantial Evidence
First, Powell argues that the ALJ improperly discounted the April 2012 medical source
statement of Ms. Lothamer, his treating psychiatric nurse, which was countersigned by Dr.
Varma. In the statement, Ms. Lothamer opined that even if Powell stopped using substances, his
mental illness symptoms would worsen if he returned to full-time work, he would miss more
than three days of work per month and have difficulty getting along with others, and he could
remain on task only 70 to 75% of an eight-hour workday. (Tr. 1264-69.) The VE testified that an
individual with these limitations could not maintain competitive employment. (Tr. 98-99.)
In discounting Ms. Lothamer’s April 2012 opinion, the ALJ first stated: “Ms. Lothamer’s
opinion is not fully reliable because it inconsistently relates that she was unaware of drug use
after 2007 and its impact on the claimant’s functioning, which contradicts other notes that she
made.” (Tr. 30.) But the ALJ’s assertion of internal inconsistency among Ms. Lothamer’s notes
is not borne out in the Court’s review of the record, as Ms. Lothamer’s documentation does not
suggest that she was unaware Powell used drugs after 2007.
Rather, as the ALJ noted, Ms. Lothamer noted in February 2008 that Powell admitted to
16

daily cannabis use and that she strongly counseled him on the matter. (Tr. 29.) Also, Ms.
Lothamer listed a diagnosis of cocaine and cannabis dependence on her November 2009 mental
impairment questionnaire. (Tr. 836.) As a result, the Court cannot trace the ALJ’s logic in
discounting Ms. Lothamer’s opinion for the reason that she “inconsistently relate[d] that she was
unaware of [Powell’s] drug use after 2007 . . . .” (Tr. 30); see Clifford, 227 F.3d at 872 (“[The
ALJ] must build an accurate and logical bridge from the evidence to his conclusions.”); Strobach
v. Colvin, No. 12 cv 50012, 2014 WL 1388285, at *12 (N.D. Ill. Apr. 9, 2014) (remanding where
the ALJ’s erred by discounting the nurse practitioner’s opinion because of alleged
inconsistencies without detailing what inconsistencies existed in the record). Nor does the
Commissioner assist the Court on this front, as she failed to respond to this argument. (See Mem.
in Supp. of the Commissioner’s Decision 6-8.)
The ALJ also criticized Ms. Lothamer’s statement in her April 2012 opinion that she was
unsure what impact Powell’s substance abuse had on his mental health problems because his
“substance abuse occurred before [his mental health] symptoms.” (Tr. 29 (quoting Tr. 1269).) In
doing so, the ALJ emphasized that Ms. Lothamer had access to assessments in December 2006
and November 2007 that spoke to the impact of Powell’s substance use and his limitations when
using cocaine. (Tr. 29 (citing Tr. 963-66, 971-74).) The ALJ then explained that these
assessments reflected that Powell stole and sold his girlfriend’s belongings to get money for
crack cocaine, smoked crack cocaine within the past thirty days, denied having a substance abuse
problem, and that his girlfriend reported he smoked crack every day. (Tr. 29.)
But the actions that the ALJ identified from the assessments–that Powell indeed had a
substance use problem–shed little light on whether Powell’s drug use was material to his mental

17

health problems. “[T]he fact that substance abuse [may have] aggravated [the claimant’s] mental
illness does not prove that the mental illness itself is not disabling.” Kangail v. Barnhart, 454
F.3d 627, 630 (7th Cir. 2006). Thus, the ALJ’s logic is again difficult to trace with respect to his
rejection of Ms. Lothamer’s April 2012 medical source statement on this basis. See Clifford, 227
F.3d at 872.
And to the extent that Powell’s substance abuse occurred before his mental illness
symptoms as Ms. Lothamer represents, this is not necessarily determinative of disability.
“[C]ourts have . . . found that an addiction may not be ‘material’ under the regulations even if it
causes a claimant’s disability.” Richardson v. Astrue, No. 11 C 7080, 2013 WL 427125, at *8
(N.D. Ill. Jan. 11, 2013). Here, Ms. Lothamer specifically attributed Powell’s decreased
concentration, at least in part, to his past drug use. (Tr. 1266.) Thus, the Court fails to see how
Ms. Lothamer’s April 2012 opinion is inconsistent with the “other notes that she made.” (Tr. 30.)
The ALJ was correct, however, to consider the April 2012 medical source statement as an
opinion from Ms. Lothamer, rather than Dr. Varma. “Only an ‘acceptable medical source’ is
considered a treating source,” Cooper v. Astrue, No. 1:06-cv-1175, 2007 WL 2904069, at *3
(S.D. Ind. Sept. 27, 2007) (citing SSR 06-03p, 2006 WL 2329939), and Powell concedes that
Ms. Lothamer is not an acceptable medical source under the applicable regulations. See 20
C.F.R. §§ 404.1513(a), 416.913(a) (listing acceptable medical sources); SSR 06-03p, 2006 WL
2329939, at *2 (stating that nurse practitioners are not “acceptable medical sources”). Powell
admits that “Dr. Varma did not examine [him] or meet with him clinically” (Opening Br. 20),
and thus, the inquiry boils down to whether Dr. Varma’s countersignature transformed the April
2012 medical source statement into a treating source opinion.

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The answer to that inquiry, in short, is “no.” The Seventh Circuit Court of Appeals has
explained that a physician does not become a treating source simply because a nurse-practitioner
fills out a form “in collaboration with a supervising doctor.” Turner v. Astrue, 390 F. App’x 581,
586 (7th Cir. 2010) (unpublished) (concluding that where there is no evidence that the physician
“ever examined [claimant]–let alone treated him[,]” he is not considered a treating source
opinion); see Elliot v. Colvin, No. 1:13-cv-90, 2014 WL 1018053, at *3-4 (S.D. Ind. Mar. 17,
2014) (holding that physician’s countersignature on a social worker’s evaluation did not qualify
it as treating source opinion where the physician never saw the claimant or consulted with the
social worker in conducting the evaluation).
It appears that Ms. Lothamer’s opinion “simply had to be countersigned by either a
physician or psychologist, and therefore, [Dr. Varma] counter[]signed the document.” Elliot,
2014 WL 1018053, at *3; see Cooper v. Astrue, No. 1:06-cv-1175, 2007 WL 2904069, at *3
(S.D. Ind. Sept. 27, 2007) (rejecting claimant’s assertion to treat a nurse practitioner’s opinion
that was countersigned by a doctor as a treating source opinion where there was no evidence the
doctor saw the claimant or consulted with the nurse about the assessment). “[D]espite the
counter[]signature, the assessment is from [Ms. Lothamer], a nurse practitioner, and not an
accepted medical source.” Cooper, 2007 WL 2904069, at *3; see also Elliot, 2014 WL 1018063,
at *3. As such, the ALJ was not required to give [Ms. Lothamer’s] opinion any added or
controlling weight.” Elliot, 2014 WL 1018053, at *3 (citing SSR 06-03p); accord Cooper, 2007
WL 2904069, at *3.
But, significantly, the fact that Ms. Lothamer is an “other source” under the regulations
“says nothing itself as to why [her opinion is] only entitled to little weight.” Hampton v. Colvin,

19

No. 12 C 9300, 2013 WL 6577933, at *6 (N.D. Ill. Dec. 13, 2013) (remanding the case based on
the ALJ’s reasoning with respect to the nurse practitioners’ opinions, recognizing that the role
they played took on special significance because they provided a very large proportion of the
claimant’s care). “[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an ‘acceptable medical
source’ may outweigh the opinion of an ‘acceptable medical source,’ including the medical
opinion of a treating source.” SSR 06-03p, 2006 WL 2329939, at *5. “As SSR 06-03p
recognizes, the growing importance of managed care means that nurse practitioners play an
increasingly large role in treating patients who would otherwise be seen by physicians or other
acceptable medical sources.” Hampton, 2013 WL 6577933, at *6.
Having found that the ALJ’s foregoing reasons for rejecting Ms. Lothamer’s April 2012
opinion lack the support of the record, the Court cannot affirm the ALJ’s reasoning solely on the
ALJ’s remaining basis–that the opinion came from an “other source.” See Courtney v. Colvin,
No. 11-cv-176, 2014 WL 218219, at *5 (W.D. Wis. Jan. 21, 2014) (“[A]n ALJ may not reject a
[nurse practitioner’s] report solely because [nurse practitioners] are not considered acceptable
medical sources.” (emphasis in original)); Frame v. Astrue, No. 1:11-cv-01062, 2012 WL
3637583, at *9 (S.D. Ind. Aug. 21, 2012) (remanding case where the ALJ rejected the nurse
practitioner’s opinion on the sole basis that she was an “other source”); Garcia v. Astrue, No.
1:11-cv-165, 2012 WL 3137890, at *12 (N.D. Ind. Aug. 1, 2012) (remanding case where the
ALJ articulated at the outset that the nurse practitioner’s opinion was worthy of less weight and
then upon evaluating the opinion, discounted it on at least one basis that was “suspect”).
Accordingly, the ALJ’s decision will be remanded for the purpose of reconsidering the April

20

2012 opinion of Powell’s treating psychiatric nurse practitioner, Ms. Lothamer.
D. Upon Remand, the ALJ Should Also Revisit the Foundation for His Step-Five Finding
Powell also argues that the ALJ’s determination at step five is not supported by
substantial evidence because the VE’s testimony about the number of addresser, surveillance
monitor, and document copier or preparer jobs upon which the ALJ relied, lack an adequate
foundation. For the following reasons, the Court encourages the ALJ upon remand to revisit the
foundation for his step-five finding.
As explained earlier, a plaintiff seeking DIB or SSI bears the burden of proof at steps one
through four of the ALJ’s sequential five-part inquiry, but the burden shifts to the Commissioner
at step five. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). At this final
step, the Commissioner must establish that the plaintiff’s RFC allows him to engage in work
found in significant numbers in the national economy. Liskowitz v. Astrue, 559 F.3d 736, 742-43
(7th Cir. 2009); 20 C.F.R. §§ 404.1520(f), 404.1566, 416.920(f), 416.966. One way the
Commissioner may carry this burden is through the use of vocational expert testimony, provided
that such testimony is reliable. See Liskowitz, 559 F.3d at 743; Ehrhart v. Sec’y of Health &
Human Servs., 969 F.2d 534, 540 (7th Cir. 1992).
The Seventh Circuit has “recognized that the standards by which an expert’s reliability is
measured may be less stringent at an administrative hearing than under the Federal Rules of
Evidence.” McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004) (citing Donahue v.
Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)). Yet, “because an ALJ’s findings must be
supported by substantial evidence, an ALJ may depend upon expert testimony only if the
testimony is reliable.” Id.; Donahue, 279 F.3d at 446 (“Evidence is not ‘substantial’ if vital

21

testimony has been conjured out of whole cloth.”).
“If the basis of the vocational expert’s conclusions is questioned at the hearing, . . . then
the ALJ should make an inquiry (similar though not necessarily identical to that of [Federal]
Rule [of Evidence] 702) to find out whether the purported expert’s conclusions are reliable.”
Donahue, 279 F.3d at 446 (emphasis in original). “A vocational expert is ‘free to give a bottom
line,’ but the data and reasoning underlying that bottom line must be ‘available on demand’ if the
claimant challenges the foundation of the vocational expert’s opinions.” McKinnie, 368 F.3d at
911 (quoting Donahue, 279 F.3d at 446); see Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 2008)
(“[T]he data underlying a VE’s testimony must be available on demand to facilitate crossexamination and testing of the VE’s reliability.”).
Here, Powell’s attorney on cross examination questioned the VE’s methodology with
respect to how she arrived at the number of addresser, surveillance monitor, and document
copier or preparer jobs. (Tr. 103.) The VE testified that the source of her numbers was the
Bureau of Labor Statistics, which publishes data in occupational categories. (Tr. 103.) She
explained that these categories, however, do not “match up” with the Dictionary of Occupational
Title (“DOT”) numbers (Tr. 103), and therefore, she must extrapolate specific job numbers from
the categories (Tr. 103-04). To her knowledge, there is no source that breaks down “every single
DOT number and title” into the number of available jobs. (Tr. 104.) Thus, the DOT numbers
and job titles she supplied were “representative of a larger occupational field” and contain “a
number of DOT numbers[.]” (Tr. 103.) The job of addresser, for example, falls within the
occupational category of mailing professions or office mailing professions. (Tr. 104.)
At that point, the ALJ took over the questioning of the VE:

22

Q

What resources do you use when you’re coming up with your numbers?
What things are you looking at?

A

I look at the information that is collected by the Bureau of Labor
Statistics.

....
Q

And you use that and is there anything else that you use to extrapolate
your numbers, any other experience or references or anything that you use
when you’re coming up with your numbers?

A

I guess – what do you mean?

Q

Is the online stuff that you’re looking at sufficient to provide the numbers
that you need for your analysis or are there other things you take into
consideration?

A

That and, you know, my experience working in the field and my training
as a vocational expert, all of those things, combined, to come up with the
numbers that we use.

Q

Okay.

(Tr. 104-06.)
Powell’s attorney then resumed his cross-examination of the VE:
Q

So how did you use your experience and training to reach the addresser
number, if you did?

A

Again, you know, that’s information that we pull from that resource and
then training that I receive, you know, in my work, working with people in
the community, working with other vocational experts.

(Tr. 106.)
Thus, the VE, rather than producing data and reliable methodology in response to the
questioning, testified that she essentially relied upon her own training and experience in reaching
her bottom-line conclusions. The VE’s training and experience, however, “does not explain her
math.” Holtz v. Astrue, No. 07-C-314-C, 2007 WL 5323758, at *5 (W.D. Wis. Nov. 8, 2007)
23

(“Holtz I”); accord Lawrence v. Astrue, No. 07-cv-515, 2008 WL 3200747, at *6 (W.D. Wis.
Aug. 2008); see also Holtz v. Astrue, No. 07-C-0314-C, 2008 WL 4704187, at *2 (W.D. Wis.
Apr. 14, 2008) (“Holtz II”) (articulating that the VE’s experience was sufficient to support her
testimony that cashier, electronics worker, and hand packager jobs existed in the state that could
be performed at a lower level of exertion than called for in the DOT, “but it was not sufficient to
support her conclusion about how many such jobs existed”).
“[T]he case law in this Circuit is clear that once the basis of the VE’s conclusions is
questioned at the hearing, the ALJ’s duty to make an inquiry into the reliability of those
conclusions is triggered.” Rasnake v. Astrue, No. 1:08-CV-134-PRC, 2009 WL 1085969, at *20
(N.D. Ind. Apr. 22, 2009) (citing McKinnie, 368 F.3d at 991; Holtz I, 2008 WL 4704187, at *1);
see Overman v. Astrue, 546 F.3d 456, 465 (7th Cir. 2008) (“[A] disability adjudication is a
hybrid between the adversarial and inquisitorial models, and if the basis of the VE’s testimony is
questioned at the hearing, then the ALJ should make an inquiry . . . to find out whether the
purported expert’s conclusions are reliable.” (internal quotation marks and citations omitted));
Polly v. Astrue, No. 1:08-cv-158, 2009 WL 1766842, at *8 (N.D. Ind. June 23, 2009) (same).
As recited above, the ALJ did inquire into the reliability of the VE’s testimony in
response to Powell’s attorney’s cross-examination. But “[t]he inquiry itself . . . is without
significant meaning if it is met with an inadequate response from the vocational expert.” Smith v.
Astrue, No. 09 C 2392, 2010 WL 3526655, at *17 (N.D. Ill. Sept. 1, 2010). Here, the VE “did
not cite any formal market surveys that [s]he or other vocational experts had done or describe
any informal method [s]he employed to extrapolate [her] estimates from the [Bureau of Labor]
data.” Lawrence, 2008 WL 3200747, at *6; accord Holtz I, 2007 WL 5323748, at *5; cf. Hanson

24

v. Colvin, No. 12-C-0822, 2013 WL 5273956, at *7 (W.D. Wis. Sept. 18, 2013) (finding the
VE’s testimony reliable where the VE, upon cross examination by the claimant’s attorney,
“explained the method used to extrapolate from the [Bureau of Labor data], referenced the DOT
and the Occupational Information Network, and cited her own knowledge and experience”
(emphasis added)). Here, the VE’s rather “unsubstantiated and vague responses” cast doubt on
the reliability of the foundation for her testimony. Lawrence, 2008 WL 3200747, at *6 (citing
McKinnie, 368 F.3d at 911); accord Holtz I, 2007 WL 5323758, at *5.
The Commissioner bears the burden at step five, Clifford, 227 F.3d at 868, and thus the
ALJ could have “delv[ed] deeper” into the VE’s methodology once challenged by Powell’s
attorney. Lacy v. Astrue, No. 11 C 1556, 2012 WL 4759231, at *13 (N.D. Ill. Oct. 4, 2012)
(stating that “the case law shows that the ALJ should have done more in an effort to vet the VE’s
reduction”). For example, further inquiry into the VE’s experience in placing persons with
similar limitations into the addresser, surveillance system monitor, and document copier jobs
could shed light on how the VE went about extrapolating the number of jobs from the Bureau of
Labor data in this instance, and in turn, whether the VE’s extrapolations are a reliable foundation
for the ALJ’s determination that Powell is not disabled. See id. Of course, “[a] finding based on
unreliable VE testimony is equivalent to a finding that is not supported by substantial evidence
and must be vacated.” Overman, 546 F.3d at 464 (quoting Britton, 521 F.3d at 803).
For these reasons, the Commissioner upon remand is encouraged to revisit the foundation
for the ALJ’s step-five finding that Powell could perform a significant number of jobs in the

25

economy.5
V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is REVERSED, and
the case is REMANDED for further proceedings in accordance with this Opinion. The Clerk is
directed to enter a judgment in favor of Powell and against the Commissioner.
SO ORDERED.
Enter for this 22nd day of April, 2014.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge

5

Because a remand is warranted on the issues discussed herein, the Court does not need to reach Powell’s
remaining arguments.

26