UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

KRISTINE K. AL KHUZAIE, )

)

Plaintiff, )

)

v. ) CAUSE NO. 1:14-cv-00199-SLC

)

COMMISSIONER OF SOCIAL )

SECURITY, sued as Carolyn W. )

Colvin, Acting Commissioner of )

Social Security, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Kristine K. Al Khuzaie appeals to the district court from a final decision of the

Commissioner of Social Security (“Commissioner”) denying her application under the Social

Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”).1 (DE 1). For the following reasons, the Commissioner’s

decision will be AFFIRMED.

I. PROCEDURAL HISTORY

Al Khuzaie applied for DIB and SSI in 2005, alleging disability as of December 20,

2003, which she later amended to July 2, 2005. (AR 14, 71-75, 1191). Her DIB-insured status

expired on December 31, 2010 (AR 14), so with respect to her DIB application, she must show

that she was disabled on or before that date. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th

Cir. 1997). The Commissioner denied Al Khuzaie’s application initially and upon

reconsideration. (AR 14, 51-59). After a hearing, Administrative Law Judge Terry Miller (“the

1

 All parties have consented to the Magistrate Judge. (DE 13); see 28 U.S.C. § 636(c).
ALJ”) rendered an unfavorable decision on June 5, 2009, denying Al Khuzaie benefits. (AR 14-

25). The Appeals Council denied Al Khuzaie’s request for review (DE 1295-1302), at which

point the ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R. §§

404.981, 416.1481. 

Al Khuzaie filed suit in this Court, and on March 5, 2012, the Court reversed and

remanded her case for further proceedings. (AR 1258-73, 1293-94). The Appeals Council then

remanded the case back to the ALJ and consolidated it with new DIB and SSI claims that Al

Khuzaie had filed in the meantime. (AR 1253-56, 1321-27, 1991-93, 1996-2004). On November

20, 2012, a second hearing was held before the ALJ, at which Al Khuzaie, who was represented

by counsel, and vocational expert Joseph L. Thompson (“the VE”), a different vocational expert

than at the first hearing, testified. (AR 2030-2100). On May 15, 2013, the ALJ issued a second

unfavorable decision denying Al Khuzaie benefits. (AR 1191-1224). The Appeals Council

denied Al Khuzaie’s request for review, making the ALJ’s decision the final decision of the

Commissioner. (AR 1177-79).

On July 2, 2014, Al Khuzaie filed suit in this Court, appealing the Commissioner’s denial

of benefits. (DE 1). She asserts that the ALJ erred in three ways: (1) improperly evaluating the

opinion of her treating psychologist, Dr. Revathi Bingi; (2) improperly evaluating the opinions

of the state agency psychologists; and (3) relying on the testimony of the VE for the number of

jobs cited at step five where such testimony purportedly lacked a proper foundation. 

II. FACTUAL BACKGROUND

A. Background

At the time of the ALJ’s second decision on May 15, 2013, Al Khuzaie was 44 years old

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(AR 71, 1207); had a ninth grade education (AR 90); and possessed past work experience as a

fast food services manager, cashier, certified nursing assistant, deli worker, and waitress (AR

1392). She alleges disability due to “chronic lower back pain; diabetes; obesity; major

depressive disorder; anxiety disorder/panic disorder/post traumatic stress disorder; and

dependent personality disorder.” (DE 18 at 3). 

B. Relevant Medical Evidence

The parties both note the lengthy administrative record (2,100 pages) in this matter and,

rather than including a summary of the relevant medical evidence in their briefs, refer the Court

to the detailed summary of the medical evidence set forth in the ALJ’s decision. (DE 18 at 3;

DE 25 at 2). Consequently, the Court will discuss the relevant medical evidence during its

analysis of the parties’ arguments, referring to the summary of the medical evidence articulated

by the ALJ (AR 1194-1220) as needed. 

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

(7thCir. 2000) (citation omitted).

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To determine if substantial evidence exists, the Court reviews the entire administrative

record but does not reweigh 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) (citation omitted). “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 she establishes an “inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to . . . last for a continuous period of not less than 12

months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental

impairment is “an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Commissioner evaluates disability claims pursuant to a five-step evaluation process,

requiring consideration of the following issues, in sequence: (1) whether the claimant is currently

unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s

impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §

404, Subpt. P, App’x 1; (4) whether the claimant is unable to perform her past work; and (5)

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whether the claimant is incapable of performing work in the national economy.2 See Dixon v.

Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations omitted); 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 (7thCir. 2001)

(citation omitted). 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. (citation omitted). 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 (citation omitted).

An extra analytical step is needed if there is medical evidence of substance abuse or

alcoholism. 20 C.F.R. §§ 404.1535, 416.935. If the Commissioner finds the claimant is disabled

and there is medical evidence of drug addiction or alcoholism, the Commissioner must determine

whether the claimant’s drug addiction or alcoholism “is a contributing factor material to the

determination of disability.” 20 C.F.R. §§ 404.1535, 416.935. An affirmative answer leads to a

finding that the claimant is not disabled. 20 C.F.R. §§ 404.1535, 416.935; see Kangail v.

Barnhart, 454 F.3d 627, 628 (7th Cir. 2006) (“When an applicant for disability benefits both has

a potentially disabling illness and is a substance abuser, the issue for the administrative law

judge is whether, were the applicant not a substance abuser, she would still be disabled.”

(citations omitted)). 

2 Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the

claimant can do despite her limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is

then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20

C.F.R. §§ 404.1520(e), 416.920(e).

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B. The Commissioner’s Final Decision

On May 15, 2013, the ALJ issued the decision that ultimately became the

Commissioner’s final decision. (AR 1191-1224). The ALJ noted at step one of the five-step

analysis that Al Khuzaie had not engaged in substantial gainful activity since her amended

alleged onset date of July 2, 2005. (AR 1194). At step two, the ALJ found that Al Khuzaie had

the following severe impairments: chronic lower back pain, likely degenerative in nature, status

post interventional pain management treatment; diabetes mellitus; obesity; major depressive

disorder, anxiety disorder/panic disorder, PTSD, and dependent personality disorder; and

polysubstance dependence (history of alcohol, cocaine, and prescription narcotics). (AR 1194). 

At step three, the ALJ concluded that Al Khuzaie did not have an impairment or

combination of impairments severe enough to meet or equal a listing. (AR 1196). Before

proceeding to step four, the ALJ determined that Al Khuzaie’s symptom testimony was not fully

credible (AR 1203), and he assigned her the following RFC:

[T]he claimant has the [RFC] to perform less than the full range of light work . . .

. Her capacities for the full range are reduced in that she is limited to occasional

climbing of ramps and stairs, balancing, stooping, kneeling, crouching and

crawling and can never climb ladders, ropes, or scaffolds. Otherwise, she can lift

and/or carry ten pounds frequently and twenty pounds occasionally and sit or

stand/walk, in combination, for six hours during an eight-hour workday. With

respect to her work environment, she needs to avoid concentrated exposure to

wetness and hazards (i.e. operational control of moving machinery, unprotected

heights, and slippery, uneven, moving surfaces). The claimant retains the mental

[RFC] to interact with others, including supervisors, co-workers, and the general

public on a casual and superficial basis. She cannot tolerate a work situation that

involves large numbers of people. However, for the period from July 2, 2005

until December 18, 2009, due to the claimant’s primary problem with polysubstance abuse, she lacked the capacity to maintain attention and concentration

for even simple, repetitive, and routine tasks.

(AR 1199). Based on this RFC and the VE’s testimony, the ALJ concluded at step four that Al

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Khuzaie could not perform any of her past relevant work, and at step five, that there were no jobs

that existed in significant numbers that Al Khuzaie could perform. (AR 1207). 

The ALJ further found that if Al Khuzaie stopped the substance abuse, she would

continue to have a severe impairment or combination of impairments. (AR 1208). The ALJ then

concluded that if Al Khuzaie stopped the substance abuse, she did not have an impairment or

combination of impairments severe enough to meet or equal a listing. (AR 1208). The ALJ then

assigned Al Khuzaie the following RFC:

The claimant has the [RFC] to perform light work . . . . Her capacities for the full

range are reduced in that she is limited to occasional climbing of ramps and stairs,

balancing, stooping, kneeling, crouching and crawling and can never climb

ladders, ropes, or scaffolds. Otherwise, she can lift and/or carry ten pounds

frequently and twenty pounds occasionally and sit or stand/walk, in combination,

for six hours during an eight-hour workday. With respect to her work

environment, she needs to avoid concentrated exposure to wetness and hazards

(i.e. operational control of moving machinery, unprotected heights, and slippery,

uneven, moving surfaces). If the claimant had not abused substances from July 2,

2005 to December 18, 2009, she would still lack the mental [RFC] to understand,

remember, and carry out detailed or complex tasks. However, she would retain

the capacity to perform simple, repetitive tasks on a sustained basis (meaning

eight hours a day/five days a week or an equivalent work schedule). She could

not work at a fast-pace or perform work that required a regimented pace of

production. Socially, she could have tolerated only casual/superficial interactions

with others, including supervisors, co-workers, and the general-public and could

not have tolerated a work situation that involved large numbers of people. 

(AR 1209). The ALJ concluded that if Al Khuzaie had not abused substances, she was still

unable to perform any of her past relevant work. (AR 1220). The ALJ further concluded that

considering Al Khuzaie’s age, education, work experience, and RFC, if Al Khuzaie had stopped

abusing substances, there would be a significant number of light work jobs in the national

economy that she could perform, including folder (3,000 jobs state-wide and 60,000 jobs

nationally), cleaner (5,000 jobs state-wide and 130,000 jobs nationally), and production

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inspector (3,000 jobs state-wide and 30,000 jobs nationally). (AR 1221). 

The ALJ found that from July 2, 2005, through December 18, 2009, a substance abuse

disorder was a contributing factor material to the determination of disability because Al Khuzaie

would not have been disabled if she stopped the substance abuse. (AR 1223). Therefore, Al

Khuzaie’s claims for DIB and SSI were denied. (AR 1223-24).

C. Substantial Evidence Supports the ALJ’s Assigning “Little Weight” to Dr. Bingi’s Opinion 

Al Khuzaie argues that the ALJ’s decision to assign “little weight” to the letter written by

Dr. Bingi, her treating psychologist, on October 22, 2008, is not supported by substantial

evidence. Contrary to Al Khuzaie’s assertion, the ALJ’s consideration of Dr. Bingi’s opinion,

though imperfect, is adequately supported. 

1. Applicable Law

The Seventh Circuit Court of Appeals has stated that “more weight is generally given to

the opinion of a treating physician because of [her] greater familiarity with the claimant’s

conditions and circumstances.” Clifford, 227 F.3d at 870 (citations omitted); see 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). However, this principle is not absolute, as “[a] treating

physician’s opinion regarding the nature and severity of a medical condition is [only] entitled to

controlling weight if it is well supported by medical findings and not inconsistent with other

substantial evidence in the record.” Clifford, 227 F.3d at 870 (citing 20 C.F.R. §

404.1527(d)(2)); see also Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). 

In the event the treating physician’s opinion is not well supported or is inconsistent with

other substantial evidence, the Commissioner must apply the following factors to determine the

proper weight to give the opinion: (1) the length of the treatment relationship and frequency of

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examination; (2) the nature and extent of the treatment relationship; (3) how much supporting

evidence is provided; (4) the consistency between the opinion and the record as a whole; (5)

whether the treating physician is a specialist; and (6) any other factors brought to the attention of

the Commissioner. 20 C.F.R. §§ 404.1527(c), 417.927(c); see Books, 91 F.3d at 979. An ALJ

must “minimally articulate his or her justification for rejecting or accepting specific evidence of

a disability.” Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004) (citation omitted). 

2. Summary of Dr. Bingi’s Letter Dated October 22, 2008

Dr. Bingi saw Al Khuzaie approximately 34 times over a five-year time frame extending

from February 2004 to October 2008. (AR 1210; see AR 732-69, 825-53, 867-906, 927-29,

1000-04, 1025-24). On October 22, 2008, Dr. Bingi wrote a three-page letter to Al Khuzaie’s

attorney, answering certain questions posed by the attorney. (AR 927-79). 

Dr. Bingi wrote that it had been a challenge to treat Al Khuzaie, as she had numerous noshows and last minute cancellations. (AR 927). Dr. Bingi stated that she had discharged Al

Khuzaie twice, the first time in August 2007 and recently again in September 2008, and had

referred her to other facilities that could provide her with more comprehensive care due to her

complex problems. (AR 927). Dr. Bingi stated that Al Khuzaie had recently returned to her, and

that she had encouraged Al Khuzaie to seek comprehensive care at Parkview Behavioral Health

based on the following reasons: (1) Al Khuzaie would often leave wrong call-back telephone

numbers, stating that she forgot her own telephone number; (2) she came in on the wrong days

for her appointments; (3) when she did appear at appointments, she appeared very drowsy,

would doze off, and would not focus well; she stated that the reason for her drowsiness was

having taken Xanax, which was prescribed by her family practitioner; (4) she reported

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considerable stress in her life, including that her father was seriously ill, that a paying guest at

her home caused her considerable distress, and that marital conflicts were worsening with her

husband, who was purportedly volatile and abusive; (5) she was dealing with suicidal ideation;

and (6) she had recently been incarcerated for shoplifting. (AR 927-28). 

Dr. Bingi stated that Al Khuzaie had lost custody of her children in the past when she

was using substances, but that from March to June 2008 she appeared to be coping

comparatively better and was seeking psychiatric treatment. (AR 928). Dr. Bingi wrote that Al

Khuzaie had reportedly not used substances since resuming counseling in March 2008. (AR

928).

Dr. Bingi, “[k]eeping the above factors in mind,” then opined that Al Khuzaie’s

symptoms of extreme mood swings, extreme anger, poor sleep, and panic attacks were “severe,” 

and that her symptoms of poor choices and decision making and poor memory were “moderate

to severe.” (AR 928). Dr. Bingi wrote that these symptoms interfered with Al Khuzaie’s ability

to work full time; that she did not appear capable of managing her life or maintaining a routine

even without working; that she depended on her parents for various aspects of her life; and that

she focused her energies on caring for her children because she had lost custody of them in the

past. (AR 928). Dr. Bingi concluded that, based on her observations in therapy, Al Khuzaie’s

ability to work full time was “limited.” (AR 929). 

Finally, Dr. Bingi wrote that her opinion would not change even assuming that Al

Khuzaie had stopped abusing drugs and alcohol, as most of the time that Al Khuzaie was in

counseling, Dr. Bingi had helped her cope with issues unrelated to drug abuse. (AR 929). Dr.

Bingi stated that Al Khuzaie’s limitations from working were attributable to the symptoms and

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circumstances described at the beginning of the letter. (AR 929). 

3. Analysis

 The ALJ devoted six pages of his 34-page decision to consideration of Dr. Bingi’s threepage opinion dated October 22, 2008. (AR 1209-15). While acknowledging that Dr. Bingi had a

lengthy and frequent treating relationship with Al Khuzaie and that Dr. Bingi gave a lengthy

explanation for her opinion, the ALJ decided to assign “little weight” to the opinion. (AR 1214). 

The ALJ gave three reasons for doing so: (1) Dr. Bingi “qualified” her opinion at the outset of

the letter; (2) the opinion relates to a period when Al Khuzaie was abusing drugs and alcohol;

and (3) the opinion was inconsistent with Dr. Bingi’s own treatment records and the record as a

whole. (DE 1215). Al Khuzaie challenges several aspects of these reasons in an effort to

convince the Court that Dr. Bingi’s opinion is entitled to greater weight.

Al Khuzaie first argues that the ALJ incorrectly found that the Global Assessment of

Functioning (“GAF”) score of 50 assigned by Dr. Wayne Von Bargen, a psychologist who

examined Al Khuzaie in April 2008, was inconsistent with Dr. Bingi’s opinion of severe and

moderate-to-severe limitations.3 (AR 863, 1214). Indeed, the ALJ mistakenly stated at one point

that a GAF score of 50 is reflective of a moderate impairment in social, occupational, or school

functioning.4 (AR 1212). Actually, a GAF score of 51 to 60 reflects a moderate impairment,

3 GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. Am.

Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). “The

American Psychiatric Association no longer uses the GAF as a metric.” Spencer v. Colvin, No. 13-cv-1487, 2015

WL 684545, at *17 n.5 (C.D. Ill. Feb. 17, 2015) (citing Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of

Mental Disorders 16 (5th ed. 2013)). However, the medical sources of record used GAF scores in assessing Al

Khuzaie, so they are relevant to the ALJ’s decision. See id. (citing Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir.

2013)). 

4 However, in another paragraph of the decision, the ALJ correctly articulated that a GAF score of 50 is

reflective of a severe impairment. (AR 1213). 

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while a GAF score of 41 to 50 reflects a severe impairment. Am. Psychiatric Ass’n, Diagnostic

& Statistical Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). As such, the ALJ

incorrectly found that the GAF score of 50 assigned by Dr. Wayne Von Bargen was inconsistent

with Dr. Bingi’s opinion of severe and moderate-to-severe findings. (AR 1214). 

But the ALJ’s statement concerning Dr. Von Bargen’s GAF score of 50 was just one

purported inconsistency highlighted by the ALJ. See Shramek v. Apfel, 226 F.3d 809, 814 (7th

Cir. 2000) (affirming the ALJ’s decision despite errors because none of the errors affected the

outcome). The ALJ also observed that Dr. Bingi rated Al Khuzaie’s GAF score at 55 in both

December 2005 and February 2006, at 60 in August 2006 (AR 733, 750, 757, 844), and that

clinician A. Baker, in conjunction with Dr. Patel, assigned Al Khuzaie a GAF score of 55 in May

2006 (AR 823). (AR 1212). The ALJ observed that these GAF scores were all reflective of just

a moderate mental impairment, contrasting with Dr. Bingi’s October 2008 opinion of severe

impairments. (AR 1212). 

 The ALJ additionally considered that there were significant gaps in Al Khuzaie’s

treatment with Dr. Bingi that undercut the persuasiveness of her opinion. (AR 1212). 

Specifically, the ALJ noted that Dr. Bingi assigned her lowest GAF score of 50 in August 2007

after Al Khuzaie returned from a nine-month gap in treatment. (AR 885-92, 1212). The ALJ

found the timing of Al Khuzaie’s visit noteworthy—it was the same day that AL Khuzaie had a

court hearing to try to regain custody of her children, having lost custody due to smoking crack. 

(AR 885-92, 1212). The ALJ noted that Dr. Bingi recommended at that visit that Al Khuzaie get

treatment for substance abuse. (AR 885-92, 1212).

The ALJ also found that Dr. Bingi’s opinion was likely influenced by the “chaos and

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significant situational stressors” in Al Khuzaie’s life that were reflected in Dr. Bingi’s treatment

notes from March through June 2008, including Al Khuzaie’s husband’s own mental health

issues. (AR 882-84, 1213). Dr. Bingi’s therapy focused on Al Khuzaie’s ability to cope with

these situational stressors. (AR 1213). The ALJ additionally noted that Dr. Robert White, Al

Khuzaie’s psychiatrist, was adjusting her medications throughout this period. (AR 1213). Thus,

as the ALJ accurately observed: “While Dr. Bingi’s treatment records from March through June

2008 reflect symptoms typical of depression and panic disorder, they also reflect lots of chaos,

significant situational stressors, and problems with medications.” (AR 1214).

Furthermore, the ALJ considered that Dr. Bingi had “qualified” her opinion at the outset

(AR 1210, 1215), a point that Al Khuzaie does not dispute. That is, before rendering her

opinion, Dr. Bingi listed a host of factors that the reader was to “keep[] . . . in mind” about Al

Khuzaie. (AR 928). These include that Al Khuzaie often left wrong call-back telephone

numbers, which suggested to the ALJ that Al Khuzaie, for whatever reason, “was not forthright

with Dr. Bingi.” (AR 1210). The ALJ also observed that Dr. Bingi referenced the “presence of

considerable stress” in Al Khuzaie’s life, including her father’s serious illness, distress over a

guest in her home, marital conflict, her husband’s mental illness, and her recent incarceration for

shoplifting. (AR 927, 1210). 

Another factor listed by Dr. Bingi was Al Khuzaie’s presentation at appointments as

drowsy, dozing off, and unfocused. (AR 927). The ALJ found “this presentation [was]

particularly noteworthy in the context of the claimant’s abuse of substances.” (AR 1210). The

ALJ then reviewed many instances in the record of Al Khuzaie’s abuse of substances from 2005

through at least December 2009. (AR 1212). As such, the ALJ observed that Dr. Bingi’s

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assessment encompassed the period in which Al Khuzaie was actively abusing substances such

as cocaine and alcohol. (AR 1211). Specifically, the ALJ reasoned: 

[A]ll the symptoms that Dr. Bingi assessed as “severe” and “moderate to severe”

were taking place during the period the claimant was abusing cocaine, alcohol,

and/or narcotic pain medications, which no doubt would enhance/distort her

symptoms, and, in turn, call into question [] Dr. Bingi’s assessment that they were

“severe” and “moderate to severe.”

(AR 1212). 

Al Khuzaie does not dispute the ALJ’s finding that she abused substances from 2005

through at least the end of 2009, which includes the period in which Dr. Bingi assessed her

symptoms as severe and moderate to severe. She points out, however, that Dr. Bingi additionally

opined that Al Khuzaie’s mental problems would still be severe and would limit her ability to

work full time even if she stopped abusing substances, and that most of the time, Dr. Bingi

counseled Al Khuzaie on issues unrelated to drug abuse. (AR 929). She contends that the ALJ

erred by not explicitly addressing this portion of Dr. Bingi’s opinion. See Golembiewski v.

Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (explaining that an ALJ must not ignore evidence

which contradicts his opinion, but must evaluate the record fairly); see also Brindisi ex rel.

Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003). 

“While the ALJ is not required to address every piece of evidence, he must articulate

some legitimate reason for his decision.” Clifford, 227 F.3d at 872 (citation omitted). “Most

importantly, he must build an accurate and logical bridge from the evidence to his conclusion.”

Id. (citations omitted). In this particular instance, there is no doubt that the ALJ thoroughly

considered Dr. Bingi’s opinion, as he wrote six pages about it. In doing so, the ALJ specifically

acknowledged that “if either controlling weight or great weight were given to Dr. Bingi’s

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October 22, 2008, opinion, the claimant would be unable to work.” (AR 1210). Thus, the ALJ

must have considered Dr. Bingi’s view that Al Khuzaie’s symptoms would remain severe even if

she stopped abusing substances; otherwise, the opinion—rendered during a time period in which

Al Khuzaie was abusing substances—would not support a finding of disability. See Kangail,

454 F.3d at 628 (“When an applicant for disability benefits both has a potentially disabling

illness and is a substance abuser, the issue for the administrative law judge is whether, were the

applicant not a substance abuser, she would still be disabled.” (citations omitted)); 20 C.F.R. §§

404.1535(b)(1), 416.935(b)(1). 

Furthermore, the ALJ fairly applied the pertinent regulatory factors when determining

that Dr. Bingi’s opinion was not entitled to controlling or great weight, including the length of

the treatment relationship and frequency of examination, the nature of the relationship, the

supporting evidence provided, the consistency between the opinion and the record as a whole,

and Dr. Bingi’s specialty.5

 See 20 C.F.R §§ 404.1527(c), 416.927(c). Ultimately, the ALJ chose

to apply greater weight to the medical source opinions of Dr. Mahender Surakanti, a psychiatrist

who treated Al Khuzaie from 2009 through 2012, and Dr. Ken Lovko, a state agency

psychologist who reviewed Al Khuzaie’s record in December 2010. (AR 1215-20, 1656-672,

1857-61). These opinions were rendered after Al Khuzaie was released from prison in October

2010 and was no longer abusing substances. (AR 1215-20). 

5 When a treating physician has opined on an issues reserved for the Commissioner, the opinion is never

entitled to controlling weight or given special significance, because doing so would abdicate the Commissioner’s

role to the treating physician. See Dixon, 270 F.3d at 1177, 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996

WL 374183 (July 2, 1996). Issues reserved to the Commissioner include statements that the claimant is “disabled”

or “unable to work.” Dixon, 270 F.3d at 1177; 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183,

at *2. 

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The ALJ specifically noted that Dr. Surakanti had the benefit of evaluating Al Khuzaie

not only in December 2009, when she was actively abusing substances and assessed a GAF score

of 45 to 50, reflective of a severe impairment, but again in November 2010, after she had

stopped abusing substances and was assessed a GAF score of 70 to 75, reflective of a mild or

slight impairment. (AR 1216, 1860, 1878); see Am. Psychiatric Ass’n, Diagnostic & Statistical

Manual of Mental Disorders 32 (4th ed., Text Rev. 2000). In contrast, Dr. Bingi treated Al

Khuzaie only during the period when she was actively abusing substances. See Clifford, 227

F.3d at 879 (“We will always give good reasons . . . for the weight we give your treating

source’s opinion.” (quoting 20 C.F.R. § 404.1527(d)(2)); see generally Rice, 384 F.3d at 371

(finding that “the ALJ satisfied his minimal duty to articulate his reasons and make a bridge

between the evidence and the outcome”). 

The ALJ further observed that the opinion of Dr. Lovko was the “most recent

assessment” from a state agency psychologist who had the benefit of reviewing Al Khuzaie’s

entire record. (AR 1215). “The regulations, and this Circuit, clearly recognize that reviewing

physicians and psychologist[s] are experts in their field and the ALJ is entitled to rely on their

expertise.” Ottman v. Barnhart, 306 F. Supp. 2d. 829, 839 (N.D. Ind. 2004) (citations omitted);

20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2) (“State agency medical and psychological

consultants and other program physicians, psychologists, and other medical specialists are highly

qualified physicians, psychologists, and other medical specialists who are also experts in Social

Security disability evaluation.”).

“No principle of administrative law or common sense requires us to remand a case in

quest of a perfect opinion unless there is reason to believe that the remand might lead to a

16
different result.” Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (citations omitted); see

Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (“[W]e will not remand a case for further

specification when we are convinced that he ALJ will reach the same result.” (citation omitted)). 

Here, it is clear that the ALJ thoughtfully and thoroughly considered Dr. Bingi’s opinion and, in

light of the record presented, there is no reason to believe that a remand might lead to a different

outcome. Consequently, the ALJ’s consideration of Dr. Bingi’s opinion will be affirmed. 

D. The ALJ Adequately Evaluated the Opinions of the State Agency Psychologists

Next, Al Khuzaie challenges the weight assessed by the ALJ to the opinions of the state

agency psychologists—Drs. Lovko, Joseph Pressner, J. Larsen, and Kenneth Neville—who

found that she could perform unskilled work. Specifically, Al Khuzaie argues that the ALJ

improperly relied on these doctors’ opinions because they violated agency policy as set out in the

Program Operations Manual System (POMS) by opining that Al Khuzaie could perform

unskilled work. Al Khuzaie’s second argument, however, also does not provide a basis to

remand the ALJ’s decision.

Dr. Pressner reviewed Al Khuzaie’s record in March 2008 and concluded that although

she had moderate difficulties with following detailed instructions and in sustaining concentration

and persistence, she could still perform simple, repetitive tasks in many work environments. 

(AR 792-96). Dr. Pressner’s opinion was affirmed by Dr. Neville in August 2006 and by Dr.

Larsen in May 2008. (AR 806, 852). In December 2010, Dr. Lovko reviewed Al Khuzaie’s

record and found that although she had moderate difficulties with detailed tasks, in social

functioning, and in sustaining concentration and persistence, she could still perform unskilled

work without special considerations in many work environments. (AR 1672). Dr. Lovko opined

17
that Al Khuzaie’s “primary difficulties appear related to episodes of substance abuse” and that

“when [she] abstains, she does not show evidence of severe impairments.” (AR 1672). Dr.

Lovko concluded:

Claimant can cooperate and tolerate the casual interactions necessary to perform

tasks. [Claimant’s symptoms] may result in some impediment to work situations

which involve large numbers of people; but it does appear that [claimant] would

be able to handle settings where there are fewer other persons in the work setting.

The evidence suggests that claimant can understand, remember, and carry-out

unskilled tasks without special considerations in many work environments. The

claimant can relate on at least a superficial basis on an ongoing basis with coworkers and supervisors. The claimant can attend to task for sufficient periods of

time to complete tasks. The claimant can manage the stresses involved with

unskilled work.

(AR 1672). 

The ALJ found the opinions of the state agency psychologists “consistent with and well

supported by the medical evidence.” (AR 1215). The ALJ observed: “[T]he treatment records

show that despite some ‘ups and downs,’ since her release from prison in October 2010, the

claimant has overall responded to treatment and made steady progress with respect to her

recovery from substance abuse.” (AR 1218). The ALJ further considered that Dr. Lovko

provided a detailed explanation for his opinion and that Dr. Lovko reviewed Al Khuzaie’s

allegations, daily activities, treatment, diagnoses, GAF ratings, and a third party report from the

halfway house where the claimant was living. (AR 1220). Consequently, the ALJ ultimately

assigned “great weight” to Dr. Lovko’s opinion (AR 1216, 1219), as well as “significant weight”

to the opinion of Dr. Surakanti, Al Khuzaie’s treating psychiatrist from 2009 to 2012 (AR 1219). 

Al Khuzaie, however, contends that the ALJ erred in crediting the state agency

psychologists’ opinions because the doctors violated POMS § DI 24510.065 when they opined

18
that she could perform unskilled work. See POMS § DI 24510.065, available at 

https://secure.ssa.gov/apps10/poms.NSF/lnx/0424510065 (last visited March 17, 2016). 

Specifically, POMS § DI 24510.065 states that when preparing a narrative statement for a mental

RFC assessment, a medical consultant should not offer an opinion as to “whether the individual

is disabled or whether the individual can or might perform or qualify for levels of work (e.g.

unskilled) or specific jobs (e.g., truck driver).” Id. 

The POMS, however, is a document that guides Social Security employees on processing

disability claims. Flint v. Colvin, 543 F. App’x 598, 600 (7th Cir. 2013). As such, it “is for the

internal use of agency employees, has no legal force, and cannot bind the agency, let alone the

district court.” Id. (collecting cases); see Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (“[T]he

Claims Manual is not a regulation. It has no legal force, and it does not bind the SSA. Rather, it

is a 13-volume handbook for internal use by thousands of SSA employees . . . .”); Pulley v.

Bowen, 817 F.2d 453, 454 (7th Cir. 1987) (“The Secretary . . . never adopted that view in

implementing regulations, and therefore, the view expressed in the manual is not binding and

cannot be considered by this Court.” (citations omitted)). Here, the ALJ properly analyzed and

weighed the opinions of the state agency psychologists in accordance with the regulations, see

20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2), and his consideration of these opinions is supported

by substantial evidence. Any technical noncompliance with the POMS does not rise to the level

of reversible error. Consequently, Al Khuzaie’s second argument does not merit a remand of the

ALJ’s decision. 

E. The ALJ’s Step-Five Finding Is Supported by Substantial Evidence

Finally, Al Khuzaie argues that the ALJ’s determination at step five is not supported by

19
substantial evidence because the VE’s testimony about the number of representative light,

unskilled jobs upon which the ALJ relied lacked an adequate foundation. For the following

reasons, Al Khuzaie’s final argument is also unpersuasive.

1. Applicable Law

As explained earlier, a plaintiff seeking DIB or SSI bears the burden of proof at steps one

through four of the ALJ’s sequential five-part inquiry; the burden then shifts to the

Commissioner at step five. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.

2005). At this final step, the Commissioner must establish that the plaintiff’s RFC allows her to

engage in work found in significant numbers in the national economy. Liskowitz v. Astrue, 559

F.3d 736, 742-43 (7th Cir. 2009); 20 C.F.R. §§ 404.1520(f), 404.1566, 416.920(f), 416.966. One

way the Commissioner may carry this burden is through the use of vocational expert testimony,

provided that such testimony is reliable. See Liskowitz, 559 F.3d at 743; Ehrhart v. Sec’y of

Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992). 

The Seventh Circuit has “recognized that the standards by which an expert’s reliability is

measured may be less stringent at an administrative hearing than under the Federal Rules of

Evidence.” McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004) (citing Donahue v.

Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)); see Liskowitz, 559 F.3d at 743 (“The witness was

testifying as a vocational expert, not as a census taker or statistician.”). Yet, “because an ALJ’s

findings must be supported by substantial evidence, an ALJ may depend upon expert testimony

only if the testimony is reliable.” McKinnie, 368 F.3d at 910; see Donahue, 279 F.3d at 446

(“Evidence is not ‘substantial’ if vital testimony has been conjured out of whole cloth.” (citations

omitted)); see also Britton v. Astrue, 521 F.3d 799, 803-04 (7th Cir. 2008). “If the basis of the

20
vocational expert’s conclusions is questioned at the hearing, . . . then the ALJ should make an

inquiry (similar though not necessarily identical to that of [Federal] Rule [of Evidence] 702) to

find out whether the purported expert’s conclusions are reliable.” Donahue, 279 F.3d at 446.

Recently, the Seventh Circuit has expressed concern about the way in which vocational

experts estimate the number of jobs in the economy that a particular claimant would be able to

perform. See Forsythe v. Colvin, 813 F.3d 677, 680-81 (7th Cir. 2016); Hill v. Colvin, 807 F.3d

862, 870-71 (7th Cir. 2015) (Posner, J., concurring); Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir.

2015); Herrmann v. Colvin, 772 F.3d 1110, 1113-14 (7th Cir. 2014); Browning v. Colvin, 766

F.3d 702, 709 (7th Cir. 2014). The Seventh Circuit summarized its concern as follows:

The basic problem appears to be that the only reliable statistics concerning the

number of jobs in the American economy and in regions thereof are census data

of broad categories of jobs, rather than data on the number of jobs within the

much narrower categories of jobs that the applicant for benefits could actually

perform. Often the vocational expert simply divides the census data on the

number of jobs in the broad category that includes the narrow category of jobs

that the applicant can perform by the total number of narrow categories in the

broad category, thus assuming that each narrow category has the same number of

jobs—an unwarranted assumption.

The vocational experts and administrative law judges can’t be blamed for the

poverty of the data concerning jobs that applicants for social security disability

benefits are capable of performing. It is high time that the Social Security

Administration turned its attention to obtaining the needed data.

Forsythe, 813 F.3d at 681. As at least one district court has observed, the Seventh Circuit “has

not yet overturned an administrative law judge’s denial of an appeal on that basis alone.” Brown

v. Colvin, No. 14-cv-894-bbc, 2015 WL 7294547, at *7 (W.D. Wis. Nov. 17, 2015) (concluding

that it would make no sense to overturn the ALJ’s decision based on the vocational expert’s

estimate of the number of jobs where the claimant was capable “of at least sedentary work and

with none of the psychological problems that plagued the plaintiff in Voigt or the ‘assemblage of

impairments’ that Ms. Herrmann suffered” (citing Herrmann, 772 F.3d at 1111)); see also

21
Fitzgerald v. Colvin, No. 15-cv-135-bbc, 2016 WL 447507, at *11 (W.D. Wis. Feb. 4, 2016). 

 2. The VE’s Testimony

At the hearing, the VE testified that a hypothetical individual with Al Khuzaie’s age,

education, work experience, and RFC could perform the light, unskilled occupations of folder,

3,000 jobs state-wide and 50,000 nationally; cleaner, 5,000 jobs state-wide and 130,000

nationally; and production inspector, 3,000 jobs state-wide and 30,000 nationally. (AR 2088). 

Additionally, the VE testified that even if that same hypothetical individual were further limited

to sedentary work, she could still perform the sedentary, unskilled jobs of assembler, 800 jobs

state-wide and 24,000 nationally; bench worker, 900 state-wide and 12,000 nationally; and

bonder, 1,000 state-wide and 15,000 nationally. (AR 2088-89). 

Al Khuzaie’s attorney then cross examined the VE about how he arrived at the estimates

for the number of representative occupations:

Q Okay. Now, well let’s take the folder job that you cited. What information did

you rely upon to come up with the numbers you did?

A Basically, I took a look initially at the Bureau of Labor Statistics and obviously,

that contained larger numbers of occupations and DOT codes based on those

publications. I then took a look at information from census date, occupational

outlook and cross-referenced the information and then took a look at the State of

Indiana publication from sources such as Indiana Work Force and Business

Research Center. I then went ahead and looked at the information through the Job

Browser Pro[] software program. Looked at specific DOT codes and the

industrial classification per those codes and based upon the previous reference

materials, I then went ahead and it populates classifications according to the DOT

code and the industrial classifications and came up with a number based upon a

review of all that information.

Q Okay. Well, I mean, did you start with the Job Browser Pro and then reduce

based on the other information or?

A I looked initially at Bureau of Labor Statistics, the broader category and then

based upon information with the other resources, either added to or subtracted

based upon the types of industries, the documentation, the description of the

particular DOT code and position and then came up with a specific number.

22
Q Okay. And now, the Bureau of Labor Statistics figures, do they have figures

based upon specific DOT numbers and occupations?

A No, they do not.

Q Okay. So, what numbers do they give you that you used?

A Well they will include, for instance or example, an assembler position. They

won’t identify various assembler positions and the numbers based upon specific

DOT code. It just looks at assembler positions across all DOT titles.

Q Okay. Now, so and likewise the folder would be in with other DOT titles?

A In Bureau of Labor Statistics, that’s correct.

Q Okay, so how do you separate out which DOT jobs are identified? In other

words, you have a category at the BLS that contains a number of DOT jobs and

DOT numbers, corresponding certain DOT numbers, how to you separate out the

number of jobs, you know, from those? Say you have, you know, a 100,000 with

DOT title X, Y and Z, how do you separate those out then?

A Well, some of that is certainly with Job Browser Pro, which outlines specific

occupations per the number of occupations per DOT number. But, as far as how

the final number comes up, it involves a cross-reference of all those materials,

noting that obviously, the Bureau of Labor Statistics numbers is going to be the

largest, but would not be the most accurate when you start defining it per DOT

number. And, that review of those labor market research materials from the State

of Indiana as well as federal, and then using the Job Browser Pro and assigning

particular industries based upon that data then it does allow me to come up with a

more specific type of clarification per DOT code.

Q Well let me ask you this. Let’s just take the folder job . . . . How did you reach

the numbers on that one? I mean, can you, you know, how many in the BLS, what

were the . . . numbers there?

A Well typically, . . . the process would be the same for each occupation. . . . The

results are different based upon the industries in a particular state and the

documentation of what that review of the labor market information reveals. The

folder position indicates, I believe, nationally over 400,000 types of occupations

and obviously, that’s not per that particular DOT code but it is basically whittled

down, if you will, through that cross-reference of all those other materials and

then using the Job Browser Pro, looking at industrial designations and then

coming up with approximately 60,000 on a national basis based on that DOT

code.

Q Okay. Well, of the sources you stated, none of those give numbers by DOT title,

23
is that correct?

A The only one that provides some clarification of that would be the Job Browser

Pro but I don’t use that specific number that it comes up with either because I

review the other later market research and see where the industries per the state

that I’m dealing with and nationally, and then come up with a number based on

that research. But you’re correct. The other resources do not deal with specific

[INAUDIBLE] per DOT code.

Q Okay, so how does the Census data give you information on whittling down these

400,000 job[s] in which, you say, includes the folder?

A Well there’s that and the other resources allow me to see what are the various

industries that are involved with the State of Indiana or any other state that I

might be testifying regarding. It allows me to see the population numbers

themselves and a review of that later market data showing what is the makeup of

the State of Indiana as one source in defining what those potential numbers may

be based on the prevalence of, let’s say, manufacturing versus healthcare versus

transportation industries.

Q Okay. But if the 400,000 jobs you started with and are supposed to, you know,

contain the, you know, various DOT jobs, I don’t see where any of these that you

have cited would separate out these jobs, the 400,000 jobs out into DOT numbers

if none of them has information about the number of DOT jobs and that’s specific

in the folder area.

A Well, what those other resources do is allow[] me to see the types of industries

that are associated with a particular state or nationally and then it allows me to,

when I utilize the Job Browser Pro, take a look at the industrial classifications and

see where those may be appropriate or not as it relates to those industrial

classifications. So that then I can come up with a more appropriate number based

upon that software program to identify the number of positions per DOT code.

Q Okay. Now, the Job Browser Pro as you said, does identify numbers per DOT

code, am I correct on that?

A It does and it does indicate that it’s an estimate based upon . . . their research and

validity and reliability of their resources as well. But – – 

Q Right. But that’s a number that they produce and they don’t, am I correct, they

don’t tell you what their methods are and how do you reach – – Well, they tell

you some of it but they don’t tell you all of it?

A That’s correct.

Q I mean, you wouldn’t be able to tell us exactly how they reach those numbers

24
because there’s some things that they keep to themselves because it’s – – They

sell that, right?

A Correct. Some of it’s proprietary, I’m sure. 

(AR 2091-97).

Al Khuzaie’s attorney then objected to the VE’s testimony, stating: “[W]here [the VE] 

starts with does not name DOT titles and codes and numbers and I don’t think he’s citing any

information [that] would indicate that we would be able to sort out that information.” (AR

2097). After this objection, the ALJ further questioned the VE:

Q Mr. Thompson, kind of explain, is it [a] matter of for each and every job you cite

is there different, you go through the same process or does it depend upon the

information you gather from these publications that you have to kind of sort

through it in a different way for each job?

A Well each particular occupation is unique in itself, and based upon the various

industries that may be associated with the State of Indiana or, the makeup

nationally is less of an issue because obviously, that’s going to remain the same. 

But the process is the same. Where it differs, however, is by reviewing that

information and starting with those large sources and obviously, the Bureau of

Labor Statistics is kind of the primary thing that everything is based on in any

labor market research, then that information is valid in allowing me to see how

the industries change and what the prevalence of those are so that information can

be utilized in identifying industrial classifications for the software program of Job

Browser Pro.

Q But there’s no formula saying, take these numbers, divide this by 2, multiply by

0.5 and this is the number I get, there’s not formulation like that, is there?

A There is no specific calculation to derive a number given that it’s different for

each occupation.

ALJ: Okay. Okay. So Mr. Shull, you’re going to provide that information, your

objection, well a bit more specific basis for that?

Atty: Yes, judge.

(AR 2097-98). 

One month later, Al Khuzaie’s attorney set forth his objection in writing to the ALJ,

25
arguing that “[t]he VE basically gave a list of sources that he used, but made no discernable

explanation of how he reached those numbers.” (AR 1396). The attorney asserted that, at most,

the VE’s testimony implies that he was “using his own experience” to arrive at the number of

jobs, which was not enough to meet the standard under the Seventh Circuit case law. (AR

1396). 

3. Analysis

In his decision, the ALJ thoroughly considered Al Khuzaie’s objection challenging the

reliability of the VE’s testimony. (AR 1221-23). Ultimately, however, the ALJ was not

persuaded by her arguments and overruled the objection. (AR 1223). 

In discussing why he found the VE’s testimony sufficiently reliable, the ALJ explained

that the Social Security Administration must “take administrative notice of reliable job

information available from various governmental and other publications” identified in 20 C.F.R.

§§ 404.1566(d) and 416.966(d), which were the publications that the VE relied upon here. (AR

1222). These governmental publications included the DOT, published by the Department of

Labor; Census Reports, published by the Bureau of the Census; and Occupational Outlook

Handbook, published by the Bureau of Labor Statistics. Additionally, the VE relied upon

publications by the Indiana Department of Work Force Development and the Indiana Business

Research Center. 

The ALJ then reviewed the VE’s methodology for arriving at his estimated number of

jobs, which involved using the aforementioned publications in conjunction with his own

experience and Job Browser Pro software. (AR 1222-23). The ALJ discussed that the VE starts

with a source that contains the largest number of jobs, the Bureau of Labor Statistics, which the

VE acknowledged does not set forth numbers based on specific DOT codes. The ALJ further

26
observed that the VE, in order to deal with these limitations, compares that information with the

Census Reports and the Occupational Outlook Handbook, as well as publications from the

particular state in which he is testifying—in this instance, publications by the Indiana

Department of Workforce Development and the Indiana Business Research Center. The ALJ

then noted that the VE explained that this data, in particular, the census and labor market data,

allow him to consider the state’s population and the industries located there—for example, the

prevalence of manufacturing versus healthcare versus transportation industries. The ALJ stated 

that the VE testified he also uses Job Browser Pro, a private software program that provides

numbers of jobs available for specific occupations by DOT code; however, the VE does not

solely rely on the numbers generated by the Job Browser Pro program, but considers them in

conjunction with the other publications. 

After summarizing the VE’s methodology, the ALJ emphasized that the VE described the

process of how he arrived at the number of jobs he cited and provided the information to the best

of his ability as a vocational expert. (AR 1223). The ALJ emphasized that the VE is an expert

in vocational placement and not a mathematician or statistician. In doing so, the ALJ rejected Al

Khuzaie’s argument that, because the VE could not articulate a specific formula that is peerreviewed and reproducible, his opinion was not reliable. (AR 1223). 

The Court agrees that, contrary to Al Khuzaie’s assertion, the VE’s testimony is

sufficiently reliable in this particular instance. The ALJ relied on four different publications, he

identified his sources with specificity, and several of the publications were governmental sources

of which the ALJ was required to take administrative notice. 20 C.F.R. §§ 404.1566(d),

416.966(d); see Liskowitz, 559 F.3d at 744; cf. Herrmann, 772 F.3d at 1113 (finding the VE’s

testimony unreliable where he cited to only one public source, the DOT, as the basis for his

27
number of jobs). Although he could have been more artful, the VE adequately explained his

methodology, which entailed comparing several publicized governmental resources, analyzing

the industrial make-up of the applicable state, and using Job Browser Pro to determine the

number of specific jobs per industry, all through the lense of his own professional experience. 

See Lawrence v. Astrue, 337 F. App’x 579, 586 (7th Cir. 2009) (finding the VE’s testimony was

sufficiently reliable where it was based on the DOT, the Occupational Employment Quarterly,

and his own experience). As explained earlier, the Seventh Circuit has recognized that the

standards by which an expert’s reliability is measured are generally less stringent at an

administrative hearing than under the Federal Rules of Evidence. McKinnie, 368 F.3d at 910;

Donahue, 279 F.3d at 446.

Notably, Al Khuzaie’s attorney never requested a copy of the data that the VE relied

upon, whether at the hearing or in a letter after the hearing. Cf. Duke v. Astrue, No. 1:07-cv-188,

2008 WL 3992251, at *6 (N.D. Ind. Aug. 27, 2008) (finding that the data underlying the VE’s

bottom line testimony was not “available on demand” where claimant’s attorney requested at the

hearing and in a supplemental letter to review the data, but it was not produced); Gaskill v.

Astrue, No. 1:08-cv-308, 2009 WL 3872056, at *6 (N.D. Ind. 2009) (same). Nor did Al Khuzaie

supplement the record after the hearing with contrary numbers, sources, or methodology. See

Britton, 521 F.3d at 804 (suggesting various methods that a claimant may use to challenge a

VE’s testimony). 

Moreover, after the ALJ afforded Al Khuzaie’s attorney the opportunity to cross examine

the VE at length about her foundation, the ALJ also questioned the VE, at least to some extent,

about the reliability of his conclusions. The ALJ essentially confirmed through his questioning

that while the VE applies this same process in each case, there is no one specific calculation or

28
formula that the VE can use to derive the number of jobs, as each occupation is unique. Cf.

Polly v. Astrue, No. 1:08-cv-158, 2009 WL 1766842, at *8 (N.D. Ind. June 23, 2009) (remanding

the ALJ’s step five finding where the ALJ not only failed to make any inquiry into the reliability

of the VE’s foundation, but he affirmatively prevented claimant’s counsel from doing so). As

the Seventh Circuit articulated in Forsythe, “[t]he vocational experts and administrative law

judges can’t be blamed for the poverty of the data concerning jobs that applicants for social

security disability benefits are capable of performing.” 813 F.3d at 681.

 On the record presented, there is no indication that Al Khuzaie’s challenge to the VE’s

methodology had any meaningful bearing on the outcome of the case. See, e.g., Lawrence, 337

F. App’x at 586; Fitzgerald, 2016 WL 447507, at *11; Brown, 2015 WL 7294547, at *7; Dugan

v. Comm’r of Soc. Sec. Admin., No. 2:10-cv-231, 2011 WL 2009465, at *8 (D. Vt. May 23,

2011). As such, it would not make sense to remand this case, which was initiated more than 10

years ago, for a second time, where the record shows that the claimant is capable—when she is

not abusing substances—of performing a limited range of light work in the jobs identified by the

VE. See, e.g., Fitzgerald, 2016 WL 447507, at *11; Brown, 2015 WL 7294547, at *7. 

Consequently, the Commissioner’s final decision will be affirmed. 

V. CONCLUSION

For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk

is directed to enter a judgment in favor of the Commissioner and against Al Khuzaie.

SO ORDERED. 

Enter for this 30th day of March 2016.

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

29