TOTTON v. COLVIN

Filing 21

ORDER on Judicial Review: The Commissioner's decision that Ms. Totton is not disabled is REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g). See Order for details. Signed by Magistrate Judge Debra McVicker Lynch on 9/1/2015.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JEANNE M. TOTTON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Order on Judicial Review
Plaintiff Jeanne M. Totton applied in June 2011 for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act, alleging she has been
disabled since July 1, 2009. Acting for the Commissioner of the Social Security
Administration following a hearing on November 13, 2012, administrative law judge
David L. Welch issued a decision on January 8, 2013, that Ms. Totton is not
disabled. The Appeals Council denied review of the ALJ’s decision on February 3,
2014, rendering the ALJ’s decision for the Commissioner final. Ms. Totton timely
filed this civil action under 42 U.S.C. § 405(g) for review of the Commissioner’s
decision.
Ms. Totton contends that the ALJ erroneously evaluated the severity of her
mental and physical impairments and their effect on her functioning, principally by
failing to give adequate weight to the opinions of Ms. Totton’s primary care
physician, Dr. Nancy Stirling, and by failing properly to assess her credibility. Ms.

Totton contends these errors led the ALJ to adopt an RFC that is not supported by
substantial evidence which, in turn, resulted in an erroneous determination that
Ms. Totton can perform her past relevant work.
The court will first describe the legal framework for analyzing disability
claims and the court’s standard of review, and then address Ms. Totton’s assertions
of error.
Standard for Proving Disability
To prove disability, a claimant must show she is 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 twelve months.” 42
U.S.C. § 423(d)(1)(A) (DIB benefits). Ms. Totton is disabled if her impairments are
of such severity that she is not able to perform the work she previously engaged in
and, if based on her age, education, and work experience, she cannot engage in any
other kind of substantial gainful work that exists in significant numbers in the
national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration has
implemented these statutory standards by, in part, prescribing a five-step
sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then she is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]

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physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or medically equal the criteria of any of the conditions in the
Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed
impairment or presents medical findings equal in severity to all the criteria for the
most similar listed impairment, then the claimant is presumptively disabled and
qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on her vocational profile (age, work
experience, and education) and RFC; if so, then she is not disabled.
The claimant bears the burden of proof at steps one through four. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the
Commissioner has the burden at step five to show that work exists in significant
numbers in the national economy that the claimant can perform, given her

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vocational profile and functional capacity. 20 C.F.R. § 404.1560(c)(2); Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
Applicable Standard of Review
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.

The ALJ’s Sequential Findings
Ms. Totton was 45 years old at the alleged onset of her disability on July 1,

2009, and 48 years old at the time of the ALJ’s decision. Her onset date coincides
with a surgical fusion procedure to her right ankle. Ms. Totton had first broken her

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right ankle in a car accident in the 1980s. The July 2009 surgery was at least the
sixth surgical procedure to her right ankle, and she had undergone the last
procedure in 2003 for debridement (removal of dead or damaged tissue) of her ankle
and repair of a ligament. (R. 347). She had another surgery in March 2010 to
remove hardware from the ankle area.
Ms. Totton has an Associate Degree in Applied Sciences and completed a fiveyear apprenticeship program under the auspices of the International Brotherhood of
Electrical Workers. (R. 34). She worked as a journeyman electrician for many
years, though was required to be off work for periods of weeks or months during
that career when she underwent ankle surgeries and recovery from them. (R. 3538). Ms. Totton testified she was not able to work at all in 2003, but in 2004 and
during part of 2005, she worked as a customer service representative for
Indianapolis Newspapers. Beginning in 2005 and continuing until her foot surgery
in July 2009, she worked in building maintenance at apartment complexes. (R. 3940).
The ALJ determined at step one that Ms. Totton had not engaged in
substantial gainful activity since her alleged onset date of July 1, 2009. At step two,
the ALJ found Ms. Totton suffered from three severe impairments: obesity, major
dysfunction of her right ankle, and degenerative disc disease. He found Ms.
Totton’s anxiety and depression were non-severe, when measured against the B
criteria of the mental health listings. Specifically, he decided that her mental
impairments resulted in only mild limitations in daily living activities, social

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functioning, and in concentration, persistence, or pace, and that she had had no
episodes of decompensation. At step three, the ALJ found no listings were met. Ms.
Totton does not challenge the ALJ’s determination she is not presumptively
disabled at step three. And although she challenges the ALJ’s failure to find her
mental impairments to be severe at step two, the substance of her challenge is not
that any step two error requires remand, but that the ALJ’s failure to evaluate the
seriousness of her mental impairments at step two led him erroneously to fail to
include appropriate limitations in the RFC stemming from her mental impairments.
For purposes of steps four and five, the ALJ determined that Ms. Totton has
the residual functional capacity to perform a range of light work, at least in terms of
the typical lifting and carrying requirements for light work (20 pounds occasionally,
10 pounds frequently). Otherwise, her RFC more closely resembles sedentary work.
She is limited to standing or walking up to two hours, but can sit up to six hours in
an 8-hour work day. She can never push or pull with the right upper extremity or
operate a foot control with the right lower extremity. The ALJ added other postural
limits and hazard-avoidance requirements, but did not include any accommodations
because of mental impairments. (R. 16). The ALJ’s RFC is nearly a verbatim
adoption of an opinion given by a medical expert (Dr. Paul Boyce) at the hearing.
See R. 45-46.
Based on the opinion of a vocational expert that the demands of Ms. Totton’s
past relevant work as a customer service representative are consistent with the
RFC, the ALJ found that Ms. Totton is capable of performing that work.

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Accordingly, the ALJ found Ms. Totton not disabled at step four and did not reach
step five.
Analysis
Ms. Totton’s assertions of error concern the ALJ’s evaluation of both her
physical and mental impairments, the weight he gave to the opinions of Ms.
Totton’s treating physician, and his evaluation of Ms. Totton’s credibility.
Strangely, the Commissioner did not address Ms. Totton’s arguments about the
ALJ’s errors in evaluating her credibility. Because there are serious errors in that
evaluation and because Ms. Totton’s statements about her work capacity, if
believed, are inconsistent with the ALJ’s RFC, the court must remand.
I.

If Ms. Totton’s testimony is believed, her work capacity is not
compatible with her past relevant work.
Ms. Totton testified that her right ankle problems and pain in her back make

standing and sitting very difficult. She said she can stand for 20-30 minutes at one
time and then needs to sit or lie down, and can sit for 30 minutes at one time, and
then needs to get up and move around or lie down. (R. 55-56, 65). She uses a TENS
unit1 for pain management and takes several medications to treat the pain,
including a narcotic and a muscle relaxer. (R. 56-57). Ms. Totton also daily takes
medication, prescribed by her physician, for relief of anxiety and depression. (R. 57).
She testified that she is not capable of performing the sedentary customer service

TENS stands for Transcutaneous Electrical Nerve Stimulation. Low voltages
of electrical current are delivered to the body for pain relief. See
http://www.webmd.com/pain-management/tc/transcutaneous-electrical-nervestimulation-tens-topic-overview.
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job she had held at the newspaper because she does not have the ability to sit as
long as that job required, and she cannot stand on her right foot for any time at all.
(R. 60-61). When she stands, she shifts to her left leg, and then that leg hurts and
her back and hips hurt. (R. 61). In addition, Ms. Totton stated her anxiety
symptoms are incompatible with working the customer complaint activities that
that job had entailed (“people would call and scream at you on the phone, and get
all irate with you”). (R. 61-62).
Ms. Totton’s counsel asked the vocational expert whether Ms. Totton could
perform the job of customer service representative if she needed to follow a 25-30
minute period of standing with a period of sitting or lying down. The VE answered
that there’s no work if lying down is required. (R. 76-77). If lying down is not
required, but a person needs to alternate sitting and standing at will, the VE
testified about certain light jobs that are available, such as a silver wrapper
(wrapping up silverware in a napkin), a cashier, a telephone quotation clerk, or a
food and beverage order clerk. (R. 78-79). Ms. Totton’s past work as a customer
service representative was not among the jobs the VE testified permitted alternate
sitting/standing positions.
II.

Ms. Totton challenges the ALJ’s evaluation of her credibility.
Ms. Totton argues the ALJ’s reasons for discounting her credibility do not

withstand scrutiny. The court agrees. Although the court gives special deference to
an ALJ’s assessment of a claimant’s credibility, that assessment must still have
reasoned underlying support. Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).

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As Ms. Totton argues, there are flaws in each of the reasons the ALJ gave for
discounting Ms. Totton’s credibility. First, the ALJ strived to find an inconsistency
about medication side effects. He stated that Ms. Totton did not report to her
surgeon “adverse” side effects from her medications, and contrasted that comment
with her personal care physician’s statement that the medications cause
drowsiness, dizziness, and dry mouth, and further with the notion that Ms. Totton
did not testify to side effects. In fact, however, Ms. Totton did testify to side effects.
She said her medications make her drowsy, give her dry mouth, and have a diuretic
effect. (R. 62). Further, there is no apparent inconsistency in a person’s description
of drowsiness or dry-mouth characteristics while noting no “adverse” side effects.
The ALJ did not inquire what was meant by the absence of “adverse” side effects,
and it seems to the court that a person experiencing normal or expected effects of
medication—like drowsiness or dry-mouth—might not consider them the kind of
“adverse” effects a doctor would be particularly inquiring of.
Second, the ALJ contrasted Ms. Totton’s statement in a function report that
she uses a cane when walking on uneven ground with his observation that “there is
no documentation that the claimant has employed the use of an assistive device.”
(R. 19). Here, again, there is no necessary inconsistency between favoring the use of
a cane over uneven ground and the absence of a notation in medical records that
Ms. Totton likes to use a cane if she is walking over uneven ground. Ms. Totton did
not suggest in her function report that she uses a cane generally. If she had, that
use might be expected to be documented in at least some of the medical records.

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Ms. Totton’s walking difficulties are documented throughout the medical record,
and are traceable to her years of difficulties with her right ankle and serial
surgeries, including a fusion in 2009. Examinations by Ms. Totton’s treating
physicians and the agency consultative physician noted her antalgic (limping) gait,
abnormal foot positioning, and atrophy of her right foot and calf (e.g, R. 473),
characteristics that do not seem at all inconsistent with a person’s use of a cane
when walking over uneven ground.
Third, the ALJ reasoned that Ms. Totton’s daily living activities “are not as
limited as one would expect given the extent of her allegations of disabling
symptoms.” (R. 19). The ALJ cited Ms. Totton’s ability to wash a sink load of
dishes, cook, clean, do laundry and minor home repairs, and feed and take care of
her chickens, cats, and bird. But these activities and Ms. Totton’s description of the
ways in which she undertakes them (with breaks and with help) are not
inconsistent with her testimony regarding the difficulties in sitting or standing, and
the need to change positions or lie down after 20-30 minutes of either sitting or
standing. The Seventh Circuit has often criticized the propensity of administrative
law judges in Social Security disability cases to equate a claimant’s ability to keep
her life and household from falling to pieces with the ability to work a full-time job;
that criticism is apt here and undermines the ALJ’s credibility evaluation. In
Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012), the court wrote:
The critical differences between activities of daily living and activities
in a full-time job are that a person has more flexibility in scheduling
the former than the latter, can get help from other persons, . . . and is
not held to a minimum standard of performance as she would be by an
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employer. The failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in social
security disability cases.
Id. at 647.
The Commissioner did not defend any of the ALJ’s grounds for his credibility
determination, and the court cannot find them defensible either. Because of the
lack of reasoned support, the court determines the ALJ’s evaluation of Ms. Totton’s
credibility is “patently wrong” and requires reversal of the ALJ’s decision. Elder v.
Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (internal citations and quotations
omitted) (when ALJ’s credibility determination lacks support, “we will declare it to
be ‘patently wrong’ and deserving of reversal”).
III.

Other Asserted Errors
It is not necessary for the court to address Ms. Totton’s other assertions of

error, but the court will broadly address her contention the ALJ did not adequately
evaluate her mental impairments. The ALJ did not include in his RFC any
accommodation for Ms. Totton’s mental impairments of anxiety and depression. He
found the mental impairments non-severe (and there is some support in his decision
for that determination) but then did not consider whether, even though non-severe,
any accommodations were appropriate. There is no discussion in the RFC section of
the decision about Ms. Totton’s mental impairments, except a comment that her
physician’s description of their limiting effects has no weight because that doctor is
not a mental health professional (even though she is the one who has prescribed
medication for anxiety and depression for years). The ALJ did not at all address
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Ms. Totton’s descriptions at the hearing of their limiting effects and in particular
her statement that her anxiety prevents her from working as a customer service
representative who must be on the receiving end of customer complaints all day
long. The ALJ was required to at least address this testimony and state why he
discounted it (or ask the VE whether a person who has problems with stress is
suitable for a customer service job). His finding that the mental impairments were
not severe did not relieve him of the obligation to address any limitations from nonsevere impairments in formulating the RFC and determining whether any such
limitations are compatible with Ms. Totton’s past relevant work. Denton v. Astrue,
596 F.3d 419, 423 (7th Cir. 2010) (“When determining a claimant’s RFC, the ALJ
must consider the combination of all limitations on the ability to work, including
those that do not individually rise to the level of a severe impairment.”)
Conclusion
Ms. Totton’s statements regarding the limiting effects of her impairments, if
credited, prevent her from performing her past relevant work. Because the ALJ’s
credibility determination is patently erroneous, the court must reverse and remand.
The Commissioner’s decision that Ms. Totton is not disabled is REVERSED AND
REMANDED under sentence four of 42 U.S.C. § 405(g).
So ORDERED.
Dated: September 1, 2015

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
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Distribution:
All ECF-registered counsel of record by email through the court’s ECF system

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