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Powell v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

April 22, 2014

TERENCE POWELL, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

ROGER B. COSBEY, Magistrate Judge.

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 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. 54-110); 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 Security Appeal Pursuant to L.R. 7.3 ("Opening Br.") 18-25.)

II. FACTUAL BACKGROUND[2]

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.)

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.)

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. 705-09.) 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 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 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 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, 1084-87.)

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. 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. 1062-68.) 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 ...


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