Townsend v. Commissioner of Social Security

Filing 17

OPINION AND ORDER: The Court GRANTS Tracie Pope Townsends request to remand the ALJs decision DE 1 . Accordingly, the Court now REMANDS this case to the Commissioner for further proceedings consistent with this Opinion and Order. Signed by Judge Jon E DeGuilio on 2/5/2015. (rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
TRACIE POPE TOWNSEND,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 3:13-CV-672-JD

OPINION AND ORDER
On July 3, 2013, Plaintiff Tracie Pope Townsend filed her Complaint in this Court
seeking review of the final decision of the Defendant Commissioner of Social Security
(Commissioner). [DE 1.] The Commissioner filed an Answer on January 31, 2014. [DE 7.] On
March 14, 2014, Townsend filed her opening brief [DE 10], to which the Commissioner
responded on June 20, 2014. [DE 16.] Townsend did not reply. Accordingly, the matter is now
ripe for decision. Jurisdiction is predicated on 42 U.S.C. § 405(g).
I. Procedural History
Townsend filed an application for disability insurance benefits (DIB) on August 23, 2009
and supplemental security income (SSI) on October 6, 2009.1 (Tr. 154-64.) Her applications
were denied initially on May 3, 2010, and again upon reconsideration on December 13, 2010.
(Tr. 84-92, 98-103.) On February 24, 2012, a hearing was held before Administrative Law
Judge Warnecke Miller (ALJ). (Tr. 47-75.) On March 22, 2012, the ALJ issued a decision

1

The regulations governing the determination of disability for DIB are found at 20 C.F.R. § 401.1501 et. seq., while
the SSI regulations are set forth at 20 C.F.R. § 416.901 et. seq. Because the definition of disability and the
applicable five-step process of evaluation are identical for both DIB and SSI in all respects relevant to this case,
reference will only be made to the regulations applicable to DIB for clarity.

denying the claims. (Tr. 16-41.) The Appeals Council denied a request for review on May 8,
2013, making the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6.).
II. Facts
Townsend was born on June 1, 1968 and was 43 years old on the date the ALJ rendered
his decision. (Tr. 154.) Townsend has completed the eleventh grade, obtained her GED, and
earned several college credits. (Tr. 747, 757.) She has worked as an administrative assistant in a
veterinarian office and an antique shop, although she essentially had no evidence of work
activity from 2000 to 2004, and 2007 to the present. (Tr. 69, 170-172, 747-48.) Townsend grew
up in an intact family of seven, but by the time of the hearing, her mother, father, and two of her
brothers had passed away, one whom passed away in February 2006 and the other in November
2007. (Tr. 324, 746-47, 893.) In early 2009, she reportedly stopped working to care for her sick
mother. (Tr. 768.) After the passing of her mother in April 2009, she lived with her father who
was her primary care giver, until he passed away of a sudden heart attack on September 20,
2011. (Tr. 65, 898.) Thereafter, Townsend’s sister began caring for Townsend on a daily basis.
(Tr. 63-67.)
Townsend has been married twice but has no children. (Tr. 680, 746.) According to her
medical report, her functioning started to decline in her early 30's, nearing the end of her second
marriage when her drinking significantly increased. (Tr. 750-51, 56.) In this appeal, Townsend
alleges a disability onset date of January 1, 2007 for mental impairments involving severe
anxiety and depression, panic attacks, and bipolar disorder, while remaining insured through
September 30, 2007 for purposes of DIB (Tr. 158, 183-191.)
The evidence establishes that Townsend has suffered from a long-standing history of
alcohol abuse with intermittent improvement/relapses until October 2010 when she achieved
2

sobriety but thereafter became incredibly thin.2 Townsend and her treating physicians believe
that Townsend drank as a means of self-medicating for her anxiety and mental health issues.
Ultimately, the ALJ opined that absent Townsend’s drug addiction and alcoholism (DAA) she
could perform limited sedentary work and therefore she was not disabled.
A.

Townsend’s Alcohol Dependence and Depression/Anxiety
Townsend’s joint diagnosis of alcohol dependence and depression/anxiety are noted

throughout the record. (Tr. 262, 294, 324, 330, 355, 386, 402, 422, 442, 474, 486, 615, 620, 625,
630, 636, 644, 673, 675, 688, 693, 698, 735, 749, 759, 818, 824, 845, 894, 899.) There are few
occurrences in the record where Townsend was not diagnosed with both alcohol dependence and
depression/anxiety. (Tr. 255-256, 305, 343, 567.)
Townsend’s extensive history of hospitalizations in 2006, 2009, and 2010 are also
reflected in the record. (Tr. 255-291, 292-303, 304, 309, 324, 342, 355, 384, 400, 419, 442-43,
486-87, 544, 561, 632, 674, 676.) In 2009 through 2011, she was also under the care of the
Center for Behavioral Medicine and Oaklawn Psychiatric Center. (Tr. 612-631, 670-699, 783824, 827-881, 887, 889, 892-910.)
Dr. Jarvis was extensively involved in Townsend’s treatment. In November 2006 and
June 2009, Dr. Jarvis noted her various hospitalizations since 2004. (Tr. 324, 332, 324, 360-61.)
He also indicated his realization that Townsend had not remained sober as often claimed. Id. In
June 2009, Dr. Jarvis wrote a detailed report, noting that Townsend was well known to his
practice and had been his patient for five to six years at that point. (Tr. 360-62.) He explained

2

The Court has reviewed the entire administrative record in this case. However, given the sensitive nature of
Townsend’s medical history and the fact that the parties do not dispute the contents of the medical records (which
reveal Townsend’s extensive history and treatment for psychological impairments and alcohol abuse with relapses
until October 2010), the Court has provided only the necessary details of these records.

3

that she has a combination of issues, which consisted of generalized anxiety disorder with
limited symptom panic attacks, depressive disorder, bereavement, avoidant personality features,
and alcohol dependence which is “episodic” and severe. Dr. Jarvis pointed to a “cascade of
losses” that were causing her current presentation, pointing out the death of her mother, brother,
pet dog, and the significant evolving illness of her father. (Tr. 360.) Townsend then agreed to
transition to Oaklawn Psychiatric Center for rehabilitation which occurred on August 2, 2009.
(Tr. 487, 561.)
By August 9, 2009, Townsend started going to two alcoholics anonymous (AA) meetings
a week and had a sponsor, although according to Oaklawn’s record she began struggling with
increased anxiety and weight loss. (Tr. 615.) By August 23, 2009, she had been sober for almost
thirty days and increased her AA meetings to three times per week. (Tr. 620.) Although the
report stated that her anxiety was still bothersome, she had been able to gain one pound and her
sleep improved. (Tr. 620.) By October 15, 2009, Townsend reported that she had finished step
two in the AA program. (Tr. 624.) The report still showed that she had increased anxiety, and
attributed it to an upcoming court date. (Tr. 624.) On November 12, 2009, she discussed her
sobriety, was described as upbeat, and reportedly felt stronger since gaining five pounds. (Tr.
629-31.) On January 7, 2010, Townsend reportedly graduated from Oaklawn’s domiciliary
intensive outpatient program, completing five months of sobriety. (Tr. 697.)
Unfortunately, one month later, on February 6, 2010, Townsend relapsed nearing the
anniversary date of her brother’s death. (Tr. 632, 636, 643.) Oaklawn’s clinical nurse specialist
and medical doctor indicated that “triggers to relapse (trauma), and coping” were discussed. (Tr.
694.) A February 21, 2010 report, made by a medical doctor at Oaklawn, described Townsend’s
behavior as self-medicating after being depressed about recent family deaths. (Tr. 676.) Both
4

Dr. Jarvis at the Center for Behavioral Medicine and Dr. Matthews at Oaklawn recommended
that Townsend be hospitalized for long-term treatment. (Tr. 744-45.) And on March 17, 2010,
Townsend was released by Oaklawn and committed to Richmond State Hospital for sustained
intensive treatment of her alcohol dependence and mood and anxiety disorders. (Tr. 671-674.)
While committed, Townsend was described as a “hopeful, positive person making progress
towards recovery.” (Tr. 731.) On June 9, 2010, she was transferred from Richmond to the
Oaklawn Transitional Group Home. (Tr. 731.)
By June 29, 2010, Townsend was attending AA meetings twice per week, appeared calm,
and denied problems with anxiety. (Tr. 802, 805.) At the time, psychiatrist Lois Elaine Duryea,
D.O., opined that Townsend was incapable of gainful employment due to her psychiatric illness.
(Tr. 783.)
On August 5, 2010, during her treatment at Oaklawn, Townsend reported that she found
a small AA group and asked for permission to only attend that group, which met once per week.
(Tr. 811.) She reported being anxious in a group of more than five people, but was able to go to
the grocery store with family and did not appear anxious in the waiting room of about twenty
people. (Tr. 811.) On September 9, 2010, the report states that she was anxious and had trouble
relaxing. (Tr. 817.) On October 21, 2010, she was described as pleasant and cooperative, saying
that she liked going to her AA meetings and was looking forward to the holidays. (Tr. 823.) On
December 16, 2010, she had remained sober and said that she liked going to AA meetings. (Tr.
841, 844.)
B.

The State Agents’ Assessments
On April 30, 2010, the state consultative examiner William Schirado, Ph.D., completed a

psychiatric review technique and indicated that his first assessment was from January 1, 2007
5

(the onset date) to September 30, 2007 (the date last insured), while his second assessment
continued from onset to August 28, 2009. (Tr. 700-727.) Townsend was noted as suffering from
“coexisting nonmental impairment(s) that requires referral to another medical specialty.”
Townsend was not categorized as having any mental disorders until the second assessment
which indicated she suffered from substance addiction disorder resulting in induced mood
disorder, without which she would not have a medically determinable mental impairment. It
appears that Schirado believed Townsend had no functional limitations, but the form was not
filled in. On December 8, 2010, reviewing state agent William Shipley, Ph.D, affirmed
Schirado’s assessment. (Tr. 825.)
On May 3, 2010, state agent Cheryl Bruzewski concluded that physically, Townsend’s
primary condition was alcoholism, and that the only difficulties she would have were with
lifting, squatting, bending, standing, walking, kneeling, and stair climbing, along with
difficulties with memory and concentration, but not with instruction. (Tr. 728.) On December
11, 2010, reviewing state agent J. Sands, M.D. affirmed Bruzewski’s assessment. (Tr. 826.)
C.

Townsend’s Malnourishment
As of late October 2010, it appears Townsend stopped drinking, but she began dropping

weight. Measuring five feet, eight inches tall (Tr. 683), her reported weight and body mass
index (BMI) since September 2010 were as follows:
Date
9/9/10
10/21/10
12/16/10
5/12/11
8/4/11
12/1/11
12/16/11

Weight
116
111
109
94
87
90
87

Page
855
823 and 850
844 and 904
903
896, 899, 900
893
919
6

Calculated BMI
17.6
16.9
16.6
14.3
13.2
13.7
13.2

12/23/11
1/6/12
1/20/12

87
84
92

918
916
914

13.2
12.8
14

Townsend was frequently described by doctors as “under-nourished.” (Tr. 731, 733, 735,
737, 739, 750, 755, 759, 763, 894.) One doctor suggested she may have “hyperthyroidism.” (Tr.
760.) And on several occasions, doctors wondered if she was suffering from bulimia or anorexia
nervosa. (Tr. 755, 750, 760.) On August 4, 2011, she was urged to see a doctor for her weight
problems, but she reportedly did not see a doctor because she had no insurance. (Tr. 899, 900.)
It was noted that Townsend was admitted to Elkhart General Hospital from November
17-21, 2011 complaining of extensive weight loss and inability to eat on account of chronic
pancreatitis. (Tr. 890-891.) Noted were Townsend’s ongoing mental issues of mood disorder,
anxiety disorder, alcohol/sedative/hypnotic dependence in full remission. It was documented
that the option of nursing home placement was discussed with Townsend and her family, but
they declined such placement. She was discharged on various medications and diagnosed as
having a urinary tract infection, dehydration, protein calorie malnutrition, hyponatremia (low
blood sodium), hyperkalemia (high blood potassium), and psychiatric illnesses.
By December 16, 2011, she had been hospitalized twice for severe weight loss. (Tr. 919.)
She was again diagnosed with malnutrition on April 3, 2012. (Tr. 920.) Throughout the record,
she generally complained that she “can’t digest food.” (Tr. 879, 904.) Also, doctors noted her
weight loss and described her as looking gaunt. (Tr. 841, 844.) She reportedly drank two Ensures
per day in an effort to gain weight. (Tr. 899.)

7

D.

Recent Treating Medical Provider Letters
On January 31, 2011, Dr. Jarvis wrote Townsend's attorney a letter explaining that he has

intermittently treated Townsend from March 2004 through June 2009, and it was his opinion that
Townsend suffered from debilitating anxiety disorder and recurrent major depression with
avoidant personality characteristics. (Tr. 882.) He reported that at least 10 of her inpatient
psychiatric hospitalizations during his treatment were for severe suicidality with attempts to take
her life, in the face of “debilitating anxiety and secondary episodic alcohol abuse.” He noted
that she has deteriorated over the last several years due to a number of psychological stressors,
particularly the deaths of her brother and mother and her divorce. He indicated that she requires
significant anti-anxiety and antidepressant medication and poorly tolerates social interface and
the stressors of an occupational environment. In his opinion, “Townsend’s underlying Anxiety
Disorder is not directly related to alcohol, or its use. Alcohol abuse is felt to arise from attempt
to self-medicate her Anxiety.” (Tr. 882) (emphasis included).
On March 14 and December 22, 2011, Psychiatrist Duryea wrote Townsend’s attorney
letters indicating Townsend has been a patient at Oaklawn since August 2009, with Duryea
becoming her outpatient psychiatrist in June 2010. (Tr. 887, 889.) Duryea diagnosed Townsend
with bipolar disorder (NOS), anxiety disorder (NOS), alcohol dependence in remission, sedative,
hypnotic, anxiolytic dependence in remission, and personality disorder (NOS). After the loss of
her father, Townsend became “more down and more paranoid.” She noted that Townsend was
dependent on her family to bring her to her appointments, and that she has a long term serious
mental illness preventing her from engaging in full time competitive employment, and that the
illness was expected to be life long.

8

On April 3, 2012, Dr. Robert Abel, M.D., indicated that he has been treating Townsend
for the past year for her “very difficult chronic problem with severe malnutrition.” (Tr. 920). It
was noted that she was down to 87 pounds and had severe weakness from her malnutrition. He
noted that many tests and medications have not helped, and there was “no way” Townsend could
work.
E.

Townsend and Her Sister’s Testimony
Townsend, represented by counsel, testified at her hearing, as did Townsend’s sister,

Elizabeth Pope. (Tr. 49-67.) Townsend testified to having received her GED in 2004 and having
previously worked as an administrative office assistant from 1998-1999 and 2005-2006. She
indicated that she currently weighed 83 pounds, and was unable to work on account of her
anxiety disorder, confusion, and inability to handle stress, along with the fact that she previously
drank heavily. She explained that her anxiety makes her feel nervous and weak, to the point
where she can’t finish tasks. Townsend indicated that she has sought psychiatric care since
2004.
On an average day in 2007, Townsend indicated that she had bad anxiety, drank heavily,
and didn’t “do very much at all.” Townsend stated that she has always had anxiety and panic
attacks, which now occur three to four times a week. Townsend also testified that regardless of
whether she was drinking, her family has had to care for her and she no longer cooks or cleans
due to her nerves. Townsend indicated that she is always sick to her stomach, she has difficultly
eating, and she is really weak. She takes Phenergan for her nausea. Although she did go out to
lunch occasionally before her dad passed away, she has a fear of being in public and has not
gone out in a long time. She has regularly attended AA meetings in the past, but wasn’t doing so
in early 2012. Townsend indicated she thought she had been sober since October 2010.
9

Elizabeth Pope testified (Tr. 63-67) to taking care of Townsend on a daily basis,
including making her shower at least once a weak and helping her wash and comb her hair. Ms.
Pope indicated that Townsend could absolutely not function independently, and Townsend does
not go out of the house without Ms. Pope being with her.
Ms. Pope explained her observations of Townsend’s panic attacks which occur about two
or three times a week, and last about twenty minutes with the residual effects lasting for hours.
Ms. Pope indicated that Townsend has severe pain in her chest, can’t breathe, and becomes
scared to death. Townsend cannot be rationalized with, and her medication doesn’t work to keep
her from having the attacks.
Ms. Pope explained that in her opinion Townsend has been unable to deal with all of the
deaths in her family, and at Townsend’s last hospital visit in November 2011, Townsend only
weighed 76 pounds, had chronic nausea and pancreatic pain, and the medical staff told Ms. Pope
to put Townsend in a nursing home to live out her last days. Ms. Pope said she is desperately
trying to save her sister by making her eat and go to the doctor on a weekly basis, which has
resulted in her going “back up” to about 84 pounds.
F.

The Vocational Expert’s Testimony
The Vocational Expert, Sharon Ringenberg (VE), testified that she had reviewed

Townsend’s work records and was present during the hearing testimony. The VE indicated that
Townsend’s past work as an office manager/general office clerk was a semi-skilled job that was
performed at the sedentary exertional level. The ALJ then asked the VE what work Townsend
could perform under the following “set of hypothetical limitations”: Occasional lifting/carrying
of ten pounds with frequent lifting/carrying of five pounds; standing/walking two hours and
sitting six hours out of an eight hour workday; occasional climbing of ramps or stairs, but no
10

climbing of ladders, ropes, or scaffolds; occasional balancing, stooping, kneeling, crouching and
crawling; avoidance of hazards (i.e. moving machinery, unprotected heights and slippery/uneven
surfaces); inability to understand, remember, or carry out detailed instructions; limited to only
redundant tasks that did not require frequent decision making and no sudden or unpredictable
work place changes; and, no more than superficial interaction with the public, supervisors, or coworkers (meaning that successful performance of the job duties involved working primarily with
things and not people, although incidental interaction or proximity would be tolerated). Based
on this first hypothetical set of limitations, the VE indicated that Townsend could not perform
her past work, but she could perform sedentary work as an addresser, a telephone order clerk,
and a table worker.
With respect to the second hypothetical individual, the ALJ asked the VE what work
Townsend could perform with the following specified limitations: No climbing of ladders, ropes,
or scaffolds with only occasional balancing; avoidance of hazards (i.e. moving machinery,
unprotected heights and slippery/uneven surfaces); inability to understand, remember, or carry
out detailed instructions or perform tasks requiring focused attention for more than fifteen
minutes continuously; no more than superficial interaction with the public, supervisors, or coworkers (meaning that successful performance of the job duties involved working primarily with
things and not people, although incidental interaction or proximity would be tolerated); and
expected to have four or more unscheduled absences per month on a consistent basis. “Given
this set of limitations” the VE indicated that Townsend could not perform her past work or other
work. The VE clarified that in general, missing two or more days a month consistently would
result in the inability to maintain competitive employment. Further, an individual must remain

11

on task about 80 to 85% of the time, which takes into consideration normal breaks, plus being
off task an additional two to five minutes per hour.
G.

The ALJ’s Opinion
In rendering his disability determination, the ALJ found that Townsend had severe

impairments, which were bipolar/anxiety/personality disorders and alcohol/sedative/hypnotic/
anxiolytic dependence. (Tr. 22.) But he found that these impairments, or combination of
impairments, did not meet or equal a Listing. (Tr. 22.) Based on these impairments, the ALJ
found that Townsend had the residual functional capacity (RFC)3 to perform a full range of work
at all exertional levels with limitations that were consistent with the ALJ’s second hypothetical
posed to the VE. And, consistent with the VE’s response to the second hypothetical question,
Townsend was deemed unable to work. (Tr. 31.) But because there was medical evidence of a
substance use disorder, the ALJ was required to determine whether the substance use disorder
was a contributing factor material to the determination of disability. 20 C.F.R. §§ 404.1535,
416.935. In making this determination, the ALJ was required to decide whether Townsend would
still be disabled if she stopped using drugs or alcohol—a decision to be made by evaluating
whether the physical and mental limitations that would remain absent DAA would still result in
disability. Id. If the remaining limitations are disabling, then Townsend would be deemed
disabled, and vice versa.
Given this obligation, the ALJ explained that if Townsend stopped the substance abuse,
he believed she would continue to have severe impairments with respect to her remaining mental
health conditions and significant weight loss marked by low BMI and weakness. (Tr. 32.)

3

Residual functioning capacity is defined as the most a person can do despite any physical and mental limitations
that may affect what can be done in a work setting. 20 C.F.R. § 404.1545(a)(1).

12

However, the ALJ determined that these impairments were not of Listing level severity. (Tr. 32.)
The ALJ found that absent the substance abuse, Townsend would have the RFC to perform
sedentary work with additional limitations which were consistent with the first hypothetical that
the ALJ presented to the VE. And similar to the VE’s testimony, the ALJ found that given
Townsend’s believed RFC absent substance abuse, Townsend could not perform her previous
work, but she could perform work as an addresser, telephone order clerk, and table worker. As a
result, the ALJ found that Townsend was not disabled within the meaning of the Social Security
Act at any time from the alleged onset date. (Tr. 40.)
III. Standard of Review
The ruling made by the ALJ becomes the final decision of the Commissioner when the
Appeals Council denies review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009).
Thereafter, in its review, this Court will affirm the Commissioner's findings of fact and denial of
disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could
differ” about the disability status of the claimant, the Court must affirm the Commissioner’s
decision as long as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.
2008).
In this substantial-evidence determination, the Court considers the entire administrative
record but does not reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute the Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v.
13

Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review
of the evidence” before affirming the Commissioner’s decision. Id. An ALJ must evaluate both
the evidence favoring the claimant as well as the evidence favoring the claim’s rejection and
may not ignore an entire line of evidence that is contrary to his findings. Zurawski v. Halter, 245
F.3d 881, 887 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. Ultimately,
while the ALJ is not required to address every piece of evidence or testimony presented, the ALJ
must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009).
Furthermore, conclusions of law are not entitled to deference; so, if the Commissioner
commits an error of law, reversal is required without regard to the volume of evidence in support
of the factual findings. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).
IV. Analysis
Disability and supplemental insurance benefits are available only to those individuals
who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d
636, 638 (7th Cir. 1998). Specifically, the claimant must be unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations
create a five-step sequential evaluation process to be used in determining whether the claimant
has established a disability. 20 C.F.R. § 404.1520(a)(4). The steps are to be used in the
following order:
1. Whether the claimant is currently engaged in substantial gainful activity;
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2. Whether the claimant has a medically severe impairment;
3. Whether the claimant's impairment meets or equals one listed in the
regulations;
4. Whether the claimant can still perform relevant past work; and
5. Whether the claimant can perform other work in the community.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step three, if the ALJ determines
that the claimant’s impairment or combination of impairments meets or equals an impairment
listed in the regulations, disability is acknowledged by the Commissioner. 20 C.F.R. §
404.1520(a)(4)(iii). However, if a listing is not met or equaled, in between steps three and four,
the ALJ must then assess the claimant’s RFC, which, in turn, is used to determine whether the
claimant can perform his past work under step four and whether the claimant can perform other
work in society at step five of the analysis. 20 C.F.R. § 404.1520(e). In this case, the ALJ also
had to evaluate whether the physical and mental limitations that would remain absent DAA
would still result in disability. 20 C.F.R. §§ 404.1535, 416.935. The claimant has the initial
burden of proof in steps one through four, while the burden shifts to the Commissioner in step
five to show that there are a significant number of jobs in the national economy that the claimant
is capable of performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Townsend challenges the ALJ’s RFC determination absent any DAA, as well as the
ALJ’s failure to adequately consider Townsend’s malnutrition under the Listings.
A.

RFC and Materiality of DAA
“The RFC is an assessment of what work-related activities the claimant can perform

despite her limitations.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20
C.F.R. § 404.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into
15

consideration all of the relevant evidence, including both medical and non-medical evidence, see
20 C.F.R. § 404.1545(a)(3), and he is required to determine which treating and examining
doctors opinions should receive weight and must explain the reasons for these findings. 20
C.F.R. § 404.1527(c). If an ALJ rejects all record opinions indicating limitations, the
“evidentiary deficit” that leaves cannot be filled by the ALJ based on his lay opinion of RFC.
See Suide v. Astrue, 371 F. App’x 684, 690 (7th Cir. 2010).
The RFC assessment in this case is made complicated by Townsend’s history of alcohol
and drug dependence. Alcoholism or drug addiction cannot be a basis for obtaining social
security benefits: “[A]n individual shall not be considered to be disabled for purposes of this
subchapter if alcoholism or drug addiction would . . . be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” See 42 U.S.C. §§ 423(d)(2)(C),
1382c(a)(3)(J); see also 20 C.F.R. §§ 404.1535, 416.935. In other words the inquiry for the ALJ
is whether “were the applicant not a substance abuser, she would still be disabled.” Kangail v.
Barnhart, 454 F.3d 627, 628–29 (7th Cir. 2006) (citations omitted).
In this case, the ALJ inferred from the improvement in Townsend’s functioning after she
became sober in October 2010 (the date accepted by the ALJ), that she could still perform work
at the sedentary level despite her remaining mental health limitations and significant weight loss.
But in so concluding, the ALJ rejected the only medical testimony that had considered
Townsend’s condition after actually having become sober (as detailed below), and then the ALJ
filled the evidentiary gap with his own assessment; in essence, he “played doctor”. Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (insisting “that an ALJ must not substitute his own
judgment for a physicians’s opinion without relying on other medical evidence or authority in
the record”). Thus, even assuming the claimant bears the burden of proving that alcoholism or
16

drug addiction is not a contributing factor,4 remand is required because as discussed below the
ALJ’s disability determination absent DAA is insufficiently supported.
In finding that absent DAA Townsend was capable of performing work, the ALJ rejected
the medical opinions from treating medical providers Dr. Jarvis, Psychiatrist Duryea, and Dr.
Abel who collectively indicated in 2011 and 2012 that Townsend’s debilitating anxiety and
chronic, severe malnutrition rendered Townsend unable to work. Even assuming that these
opinions did not deserve greater weight (given the ALJ’s thorough analysis of Townsend’s
medical evidence and the extensive reasoning for the weight afforded it), the evidentiary deficit
left by the ALJ’s rejection of these medical opinions cannot be overlooked. Simply put, there
where no other medical opinions providing a functional assessment of Townsend’s abilities
subsequent to her significant weight loss, once Townsend’s sobriety was finally maintained in
late 2010.
Specifically, Townsend’s medical records establish that she has a long-standing history
of alcohol abuse with intermittent improvement/relapses, but once she finally established a long
stretch of sobriety, she continued to lose weight. Prior to Townsend’s significant and ongoing
weight loss in 2011, the record provided a glimpse of what occurs to Townsend upon
establishing sobriety. For instance, when Townsend was admitted to Oaklawn for about one
month (between February 20 and March 17, 2010), Townsend lost 10 pounds while in inpatient
treatment. Townsend was then transferred to Richmond State Hospital on March 17, and it
wasn’t until her discharge that Townsend had gained 10 pounds back by August 2010. And

4

Harlin v. Astrue, 424 F. App’x 564, 567 (7th Cir. 2011) (claimant bears the burden); but see Mikolajczyk v. Colvin,
No. 2:12-CV-86-PRC, 2013 WL 5460156 (N.D. Ind. Sept. 30, 2013) (without deciding the issue, listing cases
evidencing a conflict on who bears the burden).

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during this period of weight gain, it was suspected that Townsend had started drinking again—a
sentiment the ALJ shared. On October 21, 2010, the date the ALJ believed Townsend actually
quit drinking, Townsend reported weighing 111 pounds, which Townsend indicated was her
normal weight.
As Townsend’s sobriety was sustained, her weight continued to drop beyond what was
normal for her. On December 16, 2010, Townsend, who again was five foot and eight inches
tall, weighed 109 pounds, and reached a BMI of 16.6. By May 2011, she was down 15 more
pounds, and by August 2011, she weighed only 87 pounds. While Oaklawn treatment records
indicate she was psychiatrically stable, it was also noted that she was very underweight and
appeared tired, and continued to have poor coping skills. In addition, she had not driven in
almost four years because driving made her too anxious. In November 2011, she was admitted
to the hospital for 5 days on account of malnourishment and psychiatric illnesses. She was again
hospitalized in December 2011, due to weight loss and an inability to eat (because it made her
sick to do so). By the beginning of 2012, Townsend had lost almost 30 pounds since October
2010, and she was noted as being “still very weak” and “frail.” Also in early 2012, Townsend’s
sister indicated that she was desperately trying to save her sister by making her eat and go to the
doctor, and that taking care of Townsend was like taking care of a five year old.
Despite evidence of Townsend’s continued loss of weight and strength while maintaining
sobriety into 2011, the ALJ gave “greater weight” to the opinions of the state agency physicians
and psychologists who opined that absent Townsend’s DAA, she did not suffer any medically
determinable impairment or significant functional limitations. The ALJ indicated that the
agency determinations were more consistent with the evidence, unlike the testimony and
allegations of total disability. But the state agent opinions were rendered in April and May 2010
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(and reviewed by other state agents in early December 2010), prior to Townsend’s sustained
sobriety and abnormal weight loss.
Thus, the problem with the ALJ’s analysis is two-fold:
First, the state agents could not have ever reviewed Townsend’s post-December 11, 2010
records, and therefore they never knew about Townsend’s abnormal weight loss and inability to
regain the weight, along with resulting weakness, once she sustained sobriety. Clearly, these
records provided significant substantive evidence of Townsend’s further physical and mental
impairments as detailed, and an opinion rendered without their consideration was simply not
reliable. See Staggs v. Astrue, 781 F.Supp.2d 790, 794-96 (S.D. Ind. 2011) (finding that the
medical record omitted from review provided significant substantive evidence regarding the
claimant’s medical impairments and that any medical opinion rendered without taking this
subsequent record into consideration was incomplete and ineffective).
Second, after discounting the only medical providers who rendered opinions after
December 2010 (indicating that Townsend was unable to physically and mentally maintain
competitive employment), the ALJ had no medical opinions that provided a functional
assessment of Townsend’s abilities subsequent to her ongoing weight loss which coincided with
her sobriety. Although the 2011 treatment notes from Oaklawn do indicate that Townsend
showed some improvement in her mood, they certainly provided no functional assessment of
Townsend’s abilities, nor did they offer an opinion about the limitations that Townsend’s
physical and mental impairments may have caused.
Despite this, the ALJ projected that given ongoing treatment, it could be reasonably
expected that Townsend would improve, her condition would not be expected to endure 12
months, and despite reports of weakness from weight loss, Townsend was capable of performing
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sedentary work which “may” (per the ALJ) result in various exertional and nonexertional
limitations. But again, there were no medical records that could possibly support the parameters
arbitrarily included in the ALJ’s RFC determination. It is unclear, therefore, how the ALJ
concluded that absent DAA, Townsend was capable of working.
Thus, in denying benefits, the ALJ failed to build an accurate and logical bridge from the
evidence to his conclusion, Clifford, 227 F.3d at 872, and impermissibly “played doctor” by
using his own lay opinions to fill evidentiary gaps in the record. See, e.g., Blakes v. Barnhart,
331 F.3d 565, 570 (7th Cir. 2003). Under the circumstances, the ALJ should have called an
expert to provide an informed basis for determining Townsend’s RFC absent DAA. 20 C.F.R. §
404.1527(e)(2)(iii), 416.927(e)(2)(iii); See Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th
Cir. 2003) (remanding where the ALJ ignored a new medical issue but should have sought more
information); Murphy v. Astrue, 496 F.3d 630, 635 (7th Cir. 2007) (remanding where the ALJ
failed to obtain additional records needed for the medical expert to provide a full and fair
evaluation of the impairments). The ALJ’s RFC assessment absent DAA is not supported by
substantial evidence, and thus remand is required in order for the ALJ to provide adequate
support for the determination of whether Townsend’s DAA was material to the disability
determination.5

5

One year after the ALJ issued his decision, the Commissioner amended the policy regarding substance use as a
contributing factor. SSR 13-02p. With regard to co-occurring mental disorders, there must be “evidence in the case
record that establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the absence of
DAA” to support a finding that DAA is material; the ALJ cannot “rely exclusively on medical expertise and the
nature of a claimant's mental disorder.” SSR 13–02p. In addition, “[The Commissioner] will find that DAA is not
material to the determination of disability and allow the claim if the record is fully developed and the evidence . . .
does not establish that the claimant's . . . [mental or physical impairments] would improve to the point of
nondisability in the absence of DAA.” Id. Such rule is now binding on the Commissioner. Lauer v. Apfel, 169 F.3d
489, 492 (7th Cir. 1999) (citing 20 C.F.R. § 402.35(b)(1)).

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And for the purpose of remand, the ALJ shall also specifically indicate whether he
believed Townsend and her sister’s testimony concerning her weekly anxiety attacks. While the
ALJ discredited various parts of their testimony for a variety of reasons, the ALJ did not
specifically indicate the extent to which he believed Townsend suffered from three to four panic
attacks a week, each lasting up to twenty minutes with residual effects lasting several hours.
Townsend’s medical records also indicate she suffered these attacks before October 2010. So
even if the ALJ thought Townsend suffered fewer anxiety attacks with more fleeting effects than
the testimony suggested, the actual time Townsend would be off task (or even miss work
altogether) due to her anxiety must be considered for purposes of determining Townsend’s RFC.
SSR 96–8p; 20 C.F.R. § 404.1529(a) (in making a disability determination, the ALJ must
consider a claimant’s statements about her symptoms and how those symptoms affect her daily
life and ability to work). Thus, on remand, the ALJ must determine Townsend’s RFC after
explaining the credibility of her limiting effects caused by her anxiety attacks.
B.

The Listings
The Court comments on a remaining issue that will affect the handling of the case on

remand. As Townsend asserts, the ALJ did not adequately explain why Townsend failed to meet
Listing 5.08 given her recurrent severe weight loss. The Commissioner argues that the ALJ
thoroughly explained that she did not meet the criteria for this Listing because there was a lack
of evidence that Townsend had a digestive disorder or that she underwent treatment.
To meet Listing 5.08, one must suffer “[w]eight loss due to any digestive disorder despite
continuing treatment as prescribed, with BMI of less than 17.50 calculated on at least two
evaluations at least 60 days apart within a consecutive 6-month period.” 20 C.F.R. § Pt. 404,

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Subpt. P, App. 1 § 5.08. The regulation also states that “[d]isorders of the digestive system
include . . . malnutrition.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 § 5.00.
There is no dispute that Townsend has experienced recurrent weight loss and has been
consistently underweight. Nor is there any dispute that she has had a BMI of less than 17.50 on
at least two evaluations at least 60 days apart within a consecutive 6-month period. The issue at
hand is essentially whether Townsend met the Listing requirements that she have “a digestive
disorder despite continuing treatment.”
The ALJ concluded that Townsend does not meet the Listing, stating:
Absent evidence of continuing related treatment as prescribed, and as required by
Listing 5.08, and given the potential for multiple other causes for weight loss, the
claimant cannot be found to meet this Listing due to a digestive condition. The
ALJ acknowledges the amount of weight is clearly consistent with that
contemplated by Listing 5.08, and has been for what appears to be more than one
year. However, the ALJ cannot assume the role of physician, and absent specific
supportive evidence, cannot rule weight loss is specifically attributable to a
digestive disorder of any type. (Tr. 38) (emphasis added).
However, Townsend was formally diagnosed with severe malnutrition, and the
regulations state that disorders of the digestive system include malnutrition. 20 C.F.R. § Pt. 404,
Subpt. P, App. 1 § 5.00. Moreover, according to the regulations, even if Townsend did not
receive treatment sufficient to meet the criteria of one of the digestive system listings, her
“digestive impairment may medically equal a listing.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1 §
5.00(C)(6). And to make such a determination, an expert would need to be consulted. See SSR
96-6p (“An updated medical expert opinion must be obtained by the administrative law judge or
the Appeals Council before a decision of disability based on medical equivalence can be
made.”). Thus, on remand the ALJ shall provide further explanation, and if necessary seek an

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updated medical expert opinion on the question of medical equivalence, for the purpose of
Townsend’s meeting Listing 5.08.
V. Conclusion
For the foregoing reasons, the Court GRANTS Tracie Pope Townsend’s request to
remand the ALJ’s decision [DE 1]. Accordingly, the Court now REMANDS this case to the
Commissioner for further proceedings consistent with this Opinion and Order.
SO ORDERED.
ENTERED: February 5, 2015
/s/ JON E. DEGUILIO
Judge
United States District Court

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