Sneed v. Commissioner of Social Security
Filing
27
OPINION AND ORDER AFFIRMING the decision of the Commissioner. Clerk directed to enter judgment in favor of Dft Commissioner of Social Security and against Pla Jeffery L Sneed. Signed by Magistrate Judge Roger B Cosbey on 12/23/2014. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JEFFERY L. SNEED,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
CAUSE NO. 1:13-CV-00300
OPINION AND ORDER
Plaintiff Jeffery Sneed 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 (See Docket # 1.) For the following reasons, the
Commissioner’s decision will be AFFIRMED.
I. PROCEDURAL HISTORY
Sneed applied for DIB and SSI on or about October 12, 2010, alleging disability as of
May 24, 2005. (Tr. 16.) He was last insured for DIB on March 31, 2008. (Tr. 16, 156); 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).
The Commissioner denied Sneed’s application initially and upon reconsideration. (Tr.
82-102, 105-10.) After a timely request, a hearing was held on April 10, 2012, before
Administrative Law Judge (“ALJ”) Yvonne Stam, at which Sneed, who was represented by
1
All parties have consented to the Magistrate Judge. (Docket # 13); see 28 U.S.C. § 636(c).
counsel; his girlfriend; and a vocational expert testified. (Tr. 37-73.) On July 13, 2012, the ALJ
rendered an unfavorable decision to Sneed, concluding that he was not disabled because he could
perform a significant number of jobs in the economy despite the limitations caused by his
impairments. (Tr. 16-30.) The Appeals Council denied his request for review, at which point the
ALJ’s decision became the final decision of the Commissioner. (Tr. 1-12, 270-71.)
In her decision, the ALJ observed that Sneed had previously applied for DIB and SSI in
January 2009, and that these applications were denied initially and upon reconsideration. (Tr. 16,
74-77.) She found that because Sneed alleged an onset date during a period that had already
been adjudicated, a request to reopen the prior applications was implied. (Tr. 16.) The ALJ
concluded, however, that Sneed had not submitted new or material evidence to support
reopening, and therefore, his 2009 applications would not be reopened. (Tr. 16.) The ALJ
further stated that because Sneed’s DIB date last insured fell within the period already
adjudicated, he could not be found disabled for purposes of DIB, see Stevenson, 105 F.3d at
1154, and the earliest potential disability onset date for SSI would be his current application date
of October 12, 2010. (Tr. 18.)
Sneed filed a complaint with this Court on October 16, 2013, seeking relief from the
Commissioner’s final decision. (Docket # 1.) In this appeal, Sneed asserts just one argument–
that the ALJ improperly evaluated a mental impairment questionnaire written by his treating
nurse practitioner, Karen Lothamer. (Opening Br. of Pl. in Social Security Appeal Pursuant to
L.R. 7.3 (“Opening Br.”) 12-15.) Because Sneed does not challenge the ALJ’s denial of his DIB
claim on the procedural basis explained above, he has waived any challenge with respect to DIB,
and therefore, only his SSI claim remains. See generally Swanson v. Apfel, No. IP 99-1159-C
2
H/G, 2000 WL 1206587, at *4 (S.D. Ind. Aug. 7, 2000) (acknowledging that a claimant waives
an argument by failing to raise it in his opening brief).
II. FACTUAL BACKGROUND2
A. Background
At the time of the ALJ’s decision, Sneed was forty-three years old (Tr. 74); had a high
school education and two years of college (Tr. 188); and had work experience as a packager,
sander, and fry cook (Tr. 28, 269). He alleges that he became disabled due to degenerative disc
disease, diabetic neuropathy, asthma, and major depressive disorder. (Opening Br. 2.) Sneed
does not dispute the ALJ’s findings on his physical impairments (Opening Br. 2 n.1); therefore,
the Court will focus on the evidence pertaining to his mental limitations.
B. Sneed’s Testimony at the Hearing
At the hearing, Sneed testified that he currently lives alone in an apartment. (Tr. 40.) His
daily routine includes taking his medications and checking his blood sugar, napping, walking
around the block for exercise, watching television, and preparing light meals (Tr. 45-48);
sometimes he has difficulty sleeping at night (Tr. 52-53). He took college classes in 2010 and
2011, attending eight hours a day, four days a week (Tr. 60); eventually, however, Sneed started
missing classes and then dropped out, citing back problems and medication side effects of
sleepiness, and if he took the medications too closely together, sweating and dizziness. (Tr. 4445, 58-60.) Sneed also stopped driving due to these medication side effects. (Tr. 44-45.)
As to his mental impairments, Sneed said that he always has had difficulty getting along
with coworkers and supervisors and has a “short-fuse temper.” (Tr. 54-57.) He does not like to
2
In the interest of brevity, this Opinion recounts only the portions of the 775-page administrative record
necessary to the decision.
3
be around people. (Tr. 61-62, 64.) He also said that his mental problems caused him to be late
for work.3 (Tr. 56.)
C. Summary of the Relevant Medical Evidence
In June 2008, Sneed was sent to Park Center by the Allen County Probation
Department after a positive test for marijuana. (Tr. 479-83.) He was diagnosed with cannabis
dependence and assigned a Global Assessment of Functioning (“GAF”) score of 58.4 (Tr. 481.)
He then participated in approximately 23 substance abuse group therapy sessions. (Tr. 434-78,
485-535, 540-77.) At these appointments, “current status” checks–which included appearance,
level of consciousness, mood, speech, attitude, behavior, psychotic symptoms, thought
content/thought process, hallucinations, activity level, orientation, and dangerousness–were all
normal. (Tr. 434-78, 485-535, 540-77.)
In February 2009, Candace Martin, Psy.D., conducted a mental status examination of
Sneed at the request of Social Security. (Tr. 293-97.) She noted that he was homeless, had been
incarcerated, and had an extensive history of polysubstance abuse. (Tr. 296.) Upon examination,
Sneed was well oriented and showed no evidence of a thought disorder; his mood appeared
normal to the situation with notable discouragement. (Tr. 294-95.) His judgment, insight,
3
Sneed’s girlfriend, who has known him almost ten years, also testified at the hearing, essentially
corroborating his testimony. (Tr. 62-65.)
4
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). A GAF score of 41 to 50 reflects
serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. And 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.
4
attention, concentration, and long-term and intermediate memory were all adequate; but his fund
of general information, short-term memory, and mentation were weak, and his abstract reasoning
poor. (Tr. 295-96.) Dr. Martin wrote that Sneed’s examination suggested that, despite his
education, he was functioning in the borderline to mildly-mentally handicapped range of
intelligence. (Tr. 296.) She assigned him a GAF of 35 and diagnosed him with anxiety disorder
due to asthma; trichotillomania;5 adjustment disorder with anxiety; polysubstance abuse, in
remission; and probable borderline intellectual functioning. (Tr. 296-97.) She concluded that he
could likely “perform simple, routine, and repetitive work that provides for his physical
limitations.” (Tr. 296.)
In December 2010, Ryan Oetting, Ph.D., completed a mental status examination of Sneed
at the request of Social Security. (Tr. 390-92.) Sneed had no psychiatric treatment history except
for attending narcotics anonymous while in prison. (Tr. 390.) He presented with a neutral affect
and a somewhat depressed, irritated mood; his thought processes appeared logical and
sequential, and his psychomotor activity normal. (Tr. 390.) He denied experiencing
hallucinations or suicidal or homicidal ideation. (Tr. 392.) Sneed reported excessive worrying,
feeling depressed every day and “worthless all the time,” and irritability and poor concentration.
(Tr. 392.) Dr. Oetting assigned a GAF of 53 and diagnosed Sneed with depressive disorder, not
otherwise specified (“NOS”); anxiety disorder NOS; and rule out borderline intellectual
functioning. (Tr. 392.)
In January 2011, Stacia Hill, Ph.D., a state agency psychologist, reviewed Sneed’s record
5
Trichotillomania is “[a] compulsion to pull out one’s own hair.” Stedman’s Medical Dictionary 2031
(28th ed. 2006).
5
and completed a psychiatric review technique and mental residual functional capacity (“ RFC”)
assessment forms. (Tr. 400-415.) On the psychiatric review technique, Dr. Hill concluded that
Sneed had mild difficulties in activities of daily living and maintaining social functioning, but
moderate difficulties in maintaining concentration, persistence or pace. (Tr. 410.) On the mental
RFC assessment, Dr. Hill indicated that Sneed was moderately limited in his ability to carry out
detailed instructions, interact appropriately with the general public, and respond appropriately to
changes in the work setting; he was not significantly limited in the remaining seventeen mental
activities. (Tr. 413-14.) In her narrative summary, Dr. Hill wrote that Sneed’s daily activities
appeared limited primarily by his physical conditions and that his attention and concentration
were moderately impacted, but still reasonable for semiskilled tasks. (Tr. 415.) She stated, in
sum:
The evidence suggests that claimant can understand, remember, and carry out
semiskilled tasks. The claimant can relate on at least a superficial basis on an
ongoing basis with co-workers and supervisors. The claimant can attend to tasks
for a sufficient period of time to complete tasks. The claimant can manage the
stresses involved with semiskilled work.
(Tr. 415.) Dr. Hill’s opinion was later affirmed by a second state agency psychologist, Donna
Unversaw, Ph.D. (Tr. 432.)
In June 2011, Sneed was referred to Park Center by the Wayne Township Trustee due to
symptoms of depression and anxiety. (Tr. 714-15.) At his intake evaluation, Sneed denied
having a drug or alcohol history. (Tr. 714.)
The following month, Sneed was evaluated by mental health counselor Michelle Jones at
Park Center, claiming symptoms of depression. (Tr. 706-13.) He reported suicidal ideation and
problems with sleep and self esteem. (Tr. 706.) He was looking for work, but had past problems
6
with aggressive behavior and attendance. (Tr. 708.) He had been in and out of prison for dealing
drugs and had child custody disputes; he was on probation at the time. (Tr. 708.) A mental status
examination revealed normal insight, judgment, mood, affect, memory, thinking form, and
thought content; he did, however, have mild to moderate problems with decision-making. (Tr.
709.) He had no difficulty managing finances, but was unable to manage time; he was fully
capable of independent living. (Tr. 710.) Ms. Jones concluded that although Sneed had been free
from alcohol or drug use in the last month, he had a moderate substance abuse problem that
needed treatment. (Tr. 710.) He was assigned a GAF of 58 and diagnoses of major depressive
disorder, recurrent moderate; and cannabis dependence. (Tr. 712.)
In August 2011, Karen Lothamer, a psychiatric nurse practitioner at Park Center,
evaluated Sneed.6 (Tr. 698-700.) She wrote that he presented with depression, mood fluctuation,
agitation, anxiety, panic attacks, memory impairment, and sleep problems. (Tr. 698-99.) He
exhibited a sullen mood and flat affect, but his behavior was slow, calm, and cooperative. (Tr.
699.) Sneed had depressed and anxious thoughts and, at times, could not focus on tasks; yet, he
had fair insight and judgment. (Tr. 699.) His GAF score and diagnoses were the same as
assigned by Ms. Jones. (Tr. 699-700.) Ms. Lothamer prescribed Cymbalta and instructed Sneed
to return in one month. (Tr. 700.)
The following month, Sneed reported that Cymbalta had been somewhat helpful. (Tr.
683-87.) Ms. Lothamer observed that he was pleasant and cooperative, but had distractible
behavior, a flat affect, and depressed mood. (Tr. 683-84.) He had fair judgment and normal
6
All of Ms. Lothamer’s treatment notes were countersigned by Dr. Ronald Pancner. (Tr. 700, 687, 761,
768.)
7
thought content, no suicidal or homicidal ideation, and no difficulties with sleep, memory, or
medication side effects. (Tr. 683-85.) She assessed that he was “[m]aintaining well and stable.”
(Tr. 685.)
In November, Sneed told Ms. Lothamer that Cymbalta had helped, but that he still had
issues with anger. (Tr. 764.) He had a cooperative and detached attitude, distractible behavior,
fair judgment, coherent thought form, and normal thought content; he reported no suicidal or
homicidal ideation or memory problems. (Tr. 764-68.) She noted that he was “slightly worse”
and added Trileptal to his medication regime. (Tr. 767.) In December, Sneed told Ms. Lothamer
that he felt Trileptal had leveled his moods. (Tr. 757.) She observed that he had a cooperative,
pleasant, and attentive attitude; normal mood but flat affect; appropriate behavior; coherent
thought form and normal thought content; good and appropriate judgment; intact memory; and
no suicidal or homicidal ideation. (Tr. 757-60.) She indicated that he was “[m]aintaining well
and stable” and that his major stressors were his physical health issues. (Tr. 759-60.)
Sneed also saw Ms. Jones on a monthly basis for counseling from August 2011 through
at least February 2012. (Tr. 672, 674-77, 679-82, 688-89, 746-47, 750, 769-70.) In August, he
presented as somewhat depressed, stating that his uncle had died recently; he continued to
struggle with homelessness. (Tr. 688-69.) A month later he again presented as somewhat
depressed, and Ms. Jones worked with him on problem solving issues related to housing,
probation, and employment. (Tr. 679-81.) In October, Ms. Jones indicated that Sneed was
anxious, but had normal insight, judgment, mood, affect, thinking form and content; he was
actively participating in therapy, but “showing limited progress.” (Tr. 672, 675-76.)
In November, Ms. Jones wrote that Sneed presented as depressed, stating that he wanted
8
to work but could not; he had problems sleeping. (Tr. 769-70.) By December, Sneed had
secured an apartment and furniture, but was concerned about his finances; he was sleeping
during the day and then finding it hard to sleep at night. (Tr. 761-62.) In January 2012, Ms.
Jones documented that Sneed was somewhat depressed and had an irregular sleep schedule. (Tr.
750.) In February, Ms. Jones and Sneed explored ways to manage his anxiety concerning
transportation and finances; he still had his days and nights mixed up. (Tr. 746-47.)
At a visit to his primary care physician, Dr. Hector Perez, in January 2012, Sneed denied
that he suffered depression, loss of sleep, or forgetfulness. (Tr. 718.)
In April 2012, Ms. Lothamer completed a mental impairment questionnaire
(countersigned by Dr. Vijoy Varma), indicating that she had reviewed the opinions of Drs.
Martin and Oetting. (Tr. 771-74.) She listed Sneed’s symptoms as depression, agitation, low self
esteem, and problems sleeping. (Tr. 771.) She stated that his medications had helped reduce his
symptoms, but his social problems (including no permanent residence) were variable. (Tr. 772.)
She indicated that his mental difficulties, without any problems from substance abuse, would
cause him to be absent or tardy from work because of lack of focus, punctuality problems, and
limited mobility; specifically, she thought he would miss two days of work a month due to
mental illness. (773.) She also found that he would have problems staying focused at work due
to depression and worry, and that he could focus on unskilled work less than 85% of the
workday. (Tr. 773-74.)
In May 2012, Ms. Jones penned a letter to Sneed’s attorney, stating that she had been
counseling Sneed since August 2011. (Tr. 775.) She stated that he had difficulty being around
people, “problems with sleep and feeling down,” and at times presented as very withdrawn. (Tr.
9
775.) She wrote that because he had only recently completed probation and monitoring, it was
not probable that his symptoms were in any way related to cannabis abuse. (Tr. 775.)
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). “In other words, so long as, in light of all the evidence, reasonable minds could
differ concerning whether [the claimant] is disabled, we must affirm the ALJ’s decision denying
benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes an “inability to
10
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.7 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
shifts to the Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On July 13, 2012, the ALJ issued the decision that ultimately became the
7
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), 416.920(e), 404.1545(a), 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).
11
Commissioner’s final decision. (Tr. 16-30.) She found at step one of the five-step analysis that
Sneed had not engaged in substantial gainful activity during the relevant period. (Tr. 18.) A step
two, the ALJ concluded that Sneed had the following severe impairments: degenerative disc
disease, diabetic neuropathy, asthma, major depressive disorder, and a history of cannabis
dependence. (Tr. 19.)
The ALJ determined at step three, however, that Sneed’s impairment or combination of
impairments were not severe enough to meet a listing. (Tr. 19-21.) Before proceeding to step
four, the ALJ determined that Sneed’s symptom testimony was not credible to the extent it
portrayed limitations in excess of the following RFC:
[T]he claimant has the residual functional capacity to perform sedentary work . . .
as follows: lift and carry 20 pounds occasionally and ten pounds frequent[ly] with
no additional limitations on the claimant’s ability to push or pull[]; stand/walk
two hours in an eight-hour workday, and sit for six hours in an eight hour
workday; never climb ladders, ropes, or scaffolds; occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl; must avoid concentrated exposure
to hazards such as unprotected heights and unguarded machinery; brief and
superficial contact with coworkers and supervisors; and no work with the general
public.
(Tr. 21.)
Based on this RFC and the vocational expert’s testimony, the ALJ concluded at step four
that Sneed was unable to perform any of his past relevant work. (Tr. 28.) The ALJ then
concluded at step five that Sneed could perform a significant number of unskilled, sedentary jobs
within the economy, including packager, assembler, and inspector. (Tr. 29.) Therefore, Sneed’s
claim for disability benefits was denied. (Tr. 29-30.)
C. The ALJ’s Consideration of Ms. Lothamer’s Opinion Is Supported by Substantial Evidence
Sneed’s sole argument on appeal is that the ALJ improperly discounted the mental
12
impairment questionnaire completed by Ms. Lothamer, his treating nurse practitioner, stating
that he would miss more than two days of work a month and could stay on task less than 85% of
a workday. Sneed’s argument, however, amounts to merely a plea to reweigh the evidence,
which the Court cannot do.
As background, the opinion of a nurse practitioner is not an “acceptable medical source”
under the Social Security regulations, but rather is considered an “other source.” Masch v.
Barnhart, 406 F. Supp. 2d 1038, 1055 (E.D. Wis. 2005); 20 C.F.R. §§ 404.1513(d), 416.913(d);
SSR 06-03p, 2006 WL 2329939, at *1-2. Although information from an “other source” cannot
establish the existence of a medically determinable impairment, it may be used “to show the
severity of the individual’s impairment(s) and how it affects the individual’s ability to function.”
SSR 06-03p, 2006 WL 2329939, at *2; see Koschnitzke v. Barnhart, 293 F. Supp. 2d 943, 950
(E.D. Wis. 2003).
“[T]he adjudicator generally should explain the weight given to opinions from ‘other
sources,’ . . . when such opinions may have an effect on the outcome of the case.” SSR 06-03p,
2006 WL 2329939, at *6; see Masch, 406 F. Supp. 2d at 1055 (stating that opinions from “other
sources” must not be ignored). “[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 *4.
Here, the ALJ penned four paragraphs pertaining to, at least in part, Ms. Lothamer’s
records. (Tr. 26-27.) Ultimately, however, the ALJ rejected Ms. Lothamer’s statement in her
mental impairment questionnaire that Sneed would be absent two days a week and could stay on
13
task only 85% of the workday, finding it inconsistent with her treatment notes and other
evidence of record. (Tr. 27.) The ALJ instead assigned greater weight to the opinions of: (1) Ms.
Jones, Sneed’s counselor, who indicated that he had difficulty being around people and that his
symptoms were not related to cannabis abuse; and (2) Drs. Hill and Unversaw, the state agency
psychologists, who stated that Sneed could understand, remember, and carry out semi-skilled
tasks; relate on at least a superficial basis with co-workers and supervisors; attend to tasks for
sufficient period of time to complete them; and manage the stresses involved with semi-skilled
work. (Tr. 27-28.)
Sneed first argues that the ALJ erred by failing to acknowledge that the mental
impairment questionnaire completed by Ms. Lothamer was countersigned by Dr. Varma, an
“acceptable medical source.”8 (Reply Br. 3.) He urges that Dr. Varma’s countersignature
transforms Ms. Lothamer’s opinion into a non-examining “acceptable medical source” opinion
deserving of more weight under at least one of the factors listed in 20 C.F.R. §§ 404.1527(d) and
416.927(d). Specifically, Sneed urges that Dr. Varma’s specialty in psychiatry entitles his
opinion to more weight than that of the state agency psychologists.
Significantly, Sneed does not contend, nor does the record reflect, that Dr. Varma ever
examined or treated him, or that Ms. Lothamer consulted with Dr. Varma in making her
assessment.9 It appears, rather, that Ms. Lothamer’s mental impairment questionnaire “simply
8
Sneed does not dispute that Ms. Lothamer as a nurse practitioner is not an acceptable medical source. 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”).
9
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.
14
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. 1:06cv-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 acceptable 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 . . . weight.” Elliot, 2014 WL 1018053, at *3 (citing SSR 06-03p); accord
Cooper, 2007 WL 2904069, at *3. Therefore, the ALJ did not err in considering Ms. Lothamer’s
opinion as one from an “other source” rather than a non-examining “acceptable medical source.’
Next, Sneed challenges the ALJ’s finding that Ms. Lothamer’s mental impairment
questionnaire was inconsistent with her own treatment notes. See Clifford, 227 F.3d at 871
(explaining that medical evidence may be discounted if it is internally inconsistent). After
making this finding, the ALJ cited as an example Ms. Lothamer’s most recent note, December
27, 2011, reflecting that Sneed was pleasant and attentive with normal thought content, coherent
thought form, and an euthymic mood, without memory problems, agitation, or anxiety. (Tr. 27
(citing Tr. 757-61)); cf. Strobach v. Colvin, No. 12 cv 50012, 2014 WL 1388285, at *12 (N.D.
Ill. Apr. 9, 2014) (finding error where the ALJ discounted nurse practitioner’s opinion because
Colvin, No. 1:13-cv-90, 2014 WL 1018053, at *3-4 (S.D. Ind. Mar. 17, 2014) (holding that a physician’s
countersignature on a social worker’s evaluation did not qualify it as a treating source opinion where the physician
never saw the claimant or consulted with the social worker in conducting the evaluation).
15
of alleged inconsistencies without detailing what inconsistencies existed in the record).
In challenging the ALJ’s finding, Sneed emphasizes that mental illness is “episodic” in
nature, Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006), and thus, the ALJ’s citation to a
single treatment note does not show inconsistency. He points to the vocational expert’s
testimony, indicating that an individual cannot sustain competitive employment if he misses even
two days of work per month on an ongoing basis. (Tr. 69.)
But the ALJ cited to more evidence than just Ms. Lothamer’s December 27th treatment
note. Earlier in her decision, the ALJ discussed Ms. Lothamer’s August 2011 initial evaluation,
revealing a sullen mood and flat affect. (Tr. 26 (citing Tr. 698-700).) At that visit, Ms. Lothamer
prescribed Cymbalta and assigned a GAF of 58 and diagnoses of major depressive disorder,
recurrent moderate; and cannabis dependence. (Tr. 698-700.) And contrary to Sneed’s assertion
otherwise (Reply Br. 2), the ALJ also summarized Ms. Lothamer’s November 2011 note,
reflecting that Sneed reported Cymbalta had been helpful but he was having issues with anger.
(Tr. 26 (citing Tr. 764-68).) At that visit, he had a cooperative but detached attitude, coherent
thought form and normal but blaming thought content, no memory problems or suicidal or
homicidal ideation, and fair judgment. (Tr. 683-87.) She assessed that he was “[s]lightly worse”
and added Trileptal to his medication regimen (Tr. 766); the next month, Sneed told Ms.
Lothamer that Trileptal had indeed leveled his moods (Tr. 757).
Thus, the ALJ considered whether Ms. Lothamer’s mental impairment questionnaire
concerning absenteeism and staying on task was consistent with her treatment notes (and that of
her Park Center colleagues) as a whole. Ultimately, the ALJ’s assessment that “[the] Park
Center records show good response to medication and therapy” is adequately supported by the
16
record. (Tr. 28.)
Moreover, the ALJ discounted Ms. Lothamer’s mental impairment questionnaire for
another reason–because she found it inconsistent with other evidence of record. (Tr. 27); see
Clifford, 227 F.3d at 871 (explaining that medical evidence may be discounted if it is
inconsistent with other evidence in the record). Specifically, the ALJ cited Sneed’s visit to Dr.
Perez, his family physician, in January 2012, at which Sneed denied any depression. (Tr. 27
(citing Tr. 718).) The ALJ noted that the same was true during Sneed’s follow-up visit to a
podiatrist later that month. (Tr. 27 (citing Tr. 728).) Thus, the ALJ was entitled to discount Ms.
Lothamer’s opinion that Sneed’s depression and worry would result in absenteeism and
difficulty staying on task where he denied depression at other physician visits. See Zblewski v.
Astrue, 302 F. App’x 488, 493-94 (7th Cir. 2008) (discounting nurse’s opinion because it was
inconsistent with other medical evidence of record).
And although Sneed argues that the ALJ failed to minimally articulate how Ms.
Lothamer’s opinion “contradicts” Ms. Jones’s May 2012 letter, which was assigned greater
weight (Opening Br. 14-15), the ALJ never said that Ms. Jones’s opinion contradicted Ms.
Lothamer’s. Rather, the ALJ explained that she assigned more weight to Ms. Jones’s letter
noting Sneed’s difficulties with interpersonal interactions because Ms. Jones met with Sneed
regularly and her letter was “consistent with her notes.” (Tr. 28.) The ALJ observed that Sneed’s
interpersonal difficulties were also reflected in the state agency psychologists’ opinions (Tr. 27),
and accordingly, she limited his RFC to “brief and superficial contact with coworkers and
supervisors; and no work with the general public” (Tr. 21).
In addition, Sneed seems to suggest that the ALJ should not have relied upon the January
17
and February 2011 opinion of the state agency psychologists because these psychologists never
reviewed Ms. Lothamer’s mental impairment questionnaire penned in April 2012. But Sneed
provides no legal explanation why this results in the ALJ’s improper reliance on the state agency
psychologists’ opinion. See generally 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) (“State
agency medical and psychologist consultants and other program physicians, psychologists, and
other medical specialists are highly qualified physicians, psychologists, and other medical
experts who are also experts in Social Security disability evaluation.”).
The ALJ expressly noted that Sneed’s most recent visit to Ms. Lothamer was in
December 2011 (Tr. 27), and thus, the ALJ obviously considered the timing of the medical
evidence of record when assigning it weight. Notably, Sneed alleged a disability onset date of
March 2005 in his October 2010 application, and his DIB insurance expired in March 2008;
thus, the state agency psychologists’ opinion was not untimely to the relevant period. See
Rasnick v. Astrue, No. 1:11-cv-283, 2012 WL 3779124, at *14 (N.D. Ind. Aug. 30, 2012)
(collecting cases and rejecting claimant’s argument that the opinion of the state agency
physicians should have been discounted because they did not review a later treating physician’s
opinion rendered several years after the claimant’s date last insured).
And to the extent the state agency psychologists’ opinion conflicted with that of Ms.
Lothamer, the ALJ weighed the conflicting evidence, ultimately deciding which evidence to
credit. This Court does not resolve evidentiary conflicts or reweigh the evidence. See Young v.
Barnhart, 362 F.3d 995, 1001-02 (7th Cir. 2004) (rejecting the claimant’s argument that the ALJ
should not have assigned greater weight to an earlier mental examination than one conducted
later in time, concluding that “[w]eighing conflicting evidence from medical experts . . . is
18
exactly what the ALJ is required to do”).
In sum, “[a]n ALJ must only minimally articulate his or her justification for rejecting or
accepting specific evidence of a disability.” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)
(citation omitted); see Frame v. Astrue, No. 1:11-cv-1062, 2012 WL 3637583, at *9 (S.D. Ind.
Aug. 21, 2012) (“[G]iven the importance and relevance of the information reflected in records
authored by other medical sources, the ALJ must articulate a reasonable basis for rejecting other
medical source opinions, which basis is grounded in substantive evidence in the record.”). Here,
the ALJ satisfied this standard, and Sneed has failed to identify evidence that materially
undermines the ALJ’s reasons for discounting Ms. Lothamer’s opinion concerning absenteeism
and staying on task.
Therefore, because the ALJ provided good reasons for discounting Ms. Lothamer’s
opinion, the Commissioner’s final decision will be AFFIRMED.
V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is AFFIRMED. The
Clerk is directed to enter a judgment in favor of the Commissioner and against Sneed.
SO ORDERED.
Enter for this 23rd day of December 2014.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?