THORNTON v. SOCIAL SECURITY ADMINISTRATION

Filing 24

ENTRY ON JUDICIAL REVIEW - Plaintiff Deena Thornton requests judicial review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration ("Commissioner"), denying her application for Su pplemental Security Income benefits ("SSI"). The decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for further proceedings consistent with the Court's Entry. (See Entry.) Signed by Judge William T. Lawrence on 6/4/2014.(RSF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DEENA THORNTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
) Cause No. 2:13-cv-161-WTL-WGH
)
)
)
)
)
)

ENTRY ON JUDICIAL REVIEW
Plaintiff Deena Thornton requests judicial review of the final decision of Defendant
Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying her application for Supplemental Security Income benefits (“SSI”).
The Court rules as follows.
I. PROCEDURAL HISTORY
Thornton filed her application for SSI alleging disability beginning in April 2000. Her
application was denied initially and upon reconsideration, whereupon she requested and was
granted a hearing before an administrative law judge (“ALJ”). On February 9, 2012, Thornton
and her counsel appeared before an ALJ for a hearing, at which a vocational expert also testified.
In a decision dated February 16, 2012, the ALJ determined that Thornton was not disabled under
the terms of the Social Security Act (“the Act”). The Appeals Council denied Thornton’s request
for review of the ALJ’s decision, and Thornton filed this timely action for judicial review.

II. APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. ' 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment that exists in the national economy, considering
her age, education, and work experience. 42 U.S.C. ' 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity she is
not disabled, despite her medical condition and other factors. 20 C.F.R. ' 416.920(a)(4)(i). At
step two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits
her ability to perform basic work activities), she is not disabled. 20 C.F.R. ' 416.920(a)(4)(ii).
At step three, the Commissioner determines whether the claimant’s impairment or combination
of impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. '
416.920(a)(4)(iii). At step four, if the claimant is able to perform her past relevant work, she is
not disabled. 20 C.F.R. ' 416.920(a)(4)(iv). At step five, if the claimant can perform any other
work in the national economy, she is not disabled. 20 C.F.R. ' 416.920(a)(4)(v).

2

In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The ALJ is required to
articulate only a minimal, but legitimate, justification for her acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into
her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Id.
III. THE ALJ’S DECISION
The ALJ found at step one that Thornton had not engaged in substantial gainful activity
since the date of her application for SSI, July 9, 2010. At steps two and three, the ALJ
concluded that Thornton had the severe impairments of COPD, degenerative disc disease,
osteoarthritis, left ulnar neuropathy across the left elbow, early right carpal tunnel syndrome,
coronary artery disease, diabetes, anxiety disorder, bipolar disease, mood disorder, posttraumatic
stress disorder, depressive disorder, substance dependence, and borderline personality traits, but
that those impairments, singly or in combination, did not meet or medically equal a listed
impairment. At step four, the ALJ concluded that Thornton
has the residual functional capacity to perform light work as defined in 20 CFR
416.967(b) except she is further limited to unskilled work which does not involve
detailed or complex instructions, no more than superficial interaction with others,
with the option to change positions every 30 minutes, no more than occasional

gripping with the left nondominant hand, no more than occasional reaching above
shoulder level, no kneeling or squatting all the way down to the floor, and no
concentrated exposure to odors, dusts, gases, or other pulmonary irritants.
Record at 19. Given this residual functional capacity (“RFC”), the ALJ concluded that Thornton
was unable to perform her past relevant work as a fast food worker, buffer, cashier, or punch
tender. The ALJ then determined that, considering her age, education, work experience, and
RFC, Thornton was able to perform a significant number of jobs existing in the national
economy, including office helper, office mail clerk, and courier. Therefore, the ALJ determined
that Thornton was not disabled as defined by the Act.
IV. DISCUSSION
The facts of record, including the details of Thornton’s medical treatment, are set forth
quite thoroughly in Thornton’s brief and need not be repeated here.
Thornton argues that the ALJ’s decision is flawed in several respects. Each of the issues
she raises is discussed, in turn, below.
Analysis of Psychological Impairments
Thornton takes issue with the fact that the “only limitations due to psychological
impairments that were found by the ALJ were no detailed or complex instructions and no more
than superficial interaction with others.” Thornton’s Brief at 22. Thornton argues that the ALJ
erred by saying she assigned great weight to the psychiatric consultants but then not reflecting
the limitations the consultants found in her RFC. To the contrary, the ALJ’s RFC is consistent
with the opinions of the psychiatric consultants, who found that Thornton could perform “at least
simple repetitive tasks” and “may benefit from an environment with little to no contact with
coworkers or the general public.” The ALJ just used slightly different words to convey the same
type of limitations.
4

The RFC Determination and the Vocational Expert’s Testimony
Next, Thornton argues that the ALJ erred in including the need to change positions every
thirty minutes without defining more clearly what she meant by that. The Court disagrees. The
hearing transcript reveals that the ALJ’s hypothetical question posed to the vocational expert
included the need to alternate between sitting and standing every thirty minutes because
Thornton “testified that she can sit or stand for about thirty minutes.” Transcript at 77. There is
simply no indication that the vocational expert did not understand what the ALJ meant.
Thornton also argues that the vocational expert’s testimony is not supported by
substantial evidence. Her argument on this issue, in total, is as follows:
Because the need to change position every thirty minutes is not more clearly
defined, it is impossible to determine if the jobs cited by the vocational expert can
truly be performed. The ALJ stated that there would be no skills that would
transfer to the sedentary level. The need to change position every thirty minutes
means that Ms. Thornton is not capable of performing the prolong [sic.] standing
involved with light work and the prolonged sitting involved with sedentary work.
SSR 83-12. Unskilled work is typically structured in a way that a person
cannot sit or stand at will. The jobs cited by the ALJ are all unskilled (office
helper (DOT 239.567-010); office mail clerk (DOT 209.687-026); courier (DOT
220.663-010)). These jobs are identified by the rulings as being ones that would
not likely permit someone to change position at will. This harmful error needs to
be resolved.
Thornton’s Brief at 20-21 (record citations omitted). While Thornton may be correct that the
jobs of office helper, office mail clerk, and courier would not permit changing position at will,
the ALJ did not find that Thornton had that requirement; she only found that she needed to
change position—alternate between sitting and standing—every thirty minutes, and the
vocational expert testified that the jobs in question would permit her to do that. The ruling cited
by Thornton, SSR 83-12, does not suggest that there are no unskilled jobs that permit alternating
between sitting and standing; it states only that a vocational expert should be consulted “to

5

clarify the implications for the occupational base” for such a restriction. The ALJ did just that in
this case; there is no error.
Psoriasis
Thornton argues that the ALJ erred in failing to address the fact that Thornton suffered
from psoriasis in 2010 and 2011, arguing that she could have met or equaled Listing 8.05 for a
closed period of time. Neither Thornton nor her counsel made mention of psoriasis at her
hearing, even though the ALJ began the hearing by asking her counsel to explain “exactly what’s
been preventing Ms. Thornton form being able to work.” Record at 35-39. “[A social security]
claimant represented by counsel is presumed to have made his best case before the ALJ,”
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007) (quoted in Pepper, 712 F.3d at 367), and
where, as here, the ALJ gave counsel ample opportunity to identify the impairments that affected
the claimant’s ability to work, the ALJ cannot be faulted for failing to address impairments that
were not so identified.
Even if the ALJ should have addressed Thornton’s psoriasis, the fact remains that a
claimant has the burden of establishing that she meets or equals all of the requirements of a given
listing, see, e.g., Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012), and here Thornton has not
pointed to any evidence of record on which such a finding could be based. Listing 8.05 requires
“extensive skin lesions that persist for at least 3 months despite continuing treatment as
prescribed.” 20 CFR Pt. 404, Subpt. P, App. 1. While Thornton clearly had skin lesions for
more than three months, the record does not indicate that they satisfied the definition of
“extensive”:
1. Extensive skin lesions. Extensive skin lesions are those that involve multiple
body sites or critical body areas, and result in a very serious limitation. Examples
of extensive skin lesions that result in a very serious limitation include but are not
limited to:
6

a. Skin lesions that interfere with the motion of your joints and that very
seriously limit your use of more than one extremity; that is, two upper
extremities, two lower extremities, or one upper and one lower extremity.
b. Skin lesions on the palms of both hands that very seriously limit your
ability to do fine and gross motor movements.
c. Skin lesions on the soles of both feet, the perineum, or both inguinal
areas that very seriously limit your ability to ambulate.
Thornton has pointed to nothing in the record that suggests that her psoriasis had a “very serious”
effect on her ability to use her hands or to ambulate, or that her psoriasis caused any other type of
“very serious limitation.” Accordingly, Thornton has not demonstrated any basis for remand
with regard to this issue.
Credibility Determination
Thornton argues that the ALJ failed properly to explain the basis for her finding that
Thornton’s testimony about her subjective complaints was not fully credible. The Court agrees.1
“In determining credibility an ALJ must consider several factors, including the claimant’s
daily activities, her level of pain or symptoms, aggravating factors, medication, treatment, and
limitations,” see 20 C.F.R. ' 404.1529(c); S.S.R. 96-7p, and justify the finding with specific
reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). “Furthermore, the ALJ may not
1

The Court notes that, as is so often the case, the ALJ’s credibility discussion begins with
the finding that “the claimant’s statements concerning the intensity, persistence, and limiting
effects” of her symptoms were “not credible to the extent they are inconsistent with” the ALJ’s
assessment of her residual functional capacity. The Seventh Circuit has criticized this language
as “meaningless boilerplate seen frequently in decisions from ALJs,” has “criticized this
template as unhelpful,” and has “explained that it backwardly ‘implies that the ability to work is
determined first and is then used to determine the claimant’s credibility.’” Shauger v. Astrue,
675 F.3d 690, 696 (7th Cir. 2012) (quoting Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012)
and citing Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir. 2010)). “Credibility findings must
have support in the record, and hackneyed language seen universally in ALJ decisions adds
nothing.” Shauger, 675 F.3d at 694 (citing Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir.2011)
and Parker, 597 F.3d at 921-22).
7

discredit a claimant’s testimony about her pain and limitations solely because there is no
objective medical evidence supporting it.” Id. (citations omitted).
In this case, the ALJ explains that she found Thornton’s testimony about her subjective
symptoms to be something less than fully credible because “[t]he description of the symptoms
and limitations that the claimant has provided throughout the record has generally been
inconsistent and unpersuasive [and] she has not generally received the type of medical treatment
one would expect from a totally disabled individual.” Record at 19. However, the ALJ does not
point to any particular inconsistent descriptions given by Thornton, and the Court’s review of the
record reveals nothing that obviously falls into that category. Neither does the ALJ explain what
makes Thornton’s descriptions “unpersuasive,” and in any event, to say that Thornton is not
credible because her testimony is “unpersuasive” is unhelpfully circular. Finally, the ALJ does
not explain—let alone provide any support for—her opinion that Thornton’s medical treatment is
not “the type . . . one would expect from a totally disabled individual.” There is no indication
that Thornton has failed to seek medical care for her impairments or that she has been
noncompliant with her physicians’ suggested treatments. In fact, Thornton has been under the
regular care of several medical providers for both her physical and her mental impairments; she
takes numerous medications; she has had a variety of tests; she has completed at least one course
of physical therapy; and she has attended therapy sessions and seen mental health care providers
regularly. This does not necessarily mean that she is disabled, of course, but her course of
treatment is not so sparse as to support a finding that she does not experience disabling
symptoms.
“[A]n ALJ must adequately explain [her] credibility finding by discussing specific
reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing

8

Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.2009)). The ALJ failed to do so in this case. Remand
is necessary to address this error.
Weight Assigned to Treating Physician and Therapist
The ALJ assigned “limited weight” to the opinions of Thornton’s treating physician, Dr.
Lulich, and her treating mental health therapist, stating that both were based upon subjective
complaints rather than objective evidence and were not consistent with the record as a whole. “If
an ALJ does not give a treating physician’s opinion controlling weight, the regulations require
the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of
examination, the physician’s specialty, the types of tests performed, and the consistency and
supportability of the physician’s opinion.” Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)
(quoting Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)).
The Court agrees with Thornton that the ALJ failed adequately to support her decision to give
these opinions only limited weight, a problem that is compounded by the lack of basis for the
ALJ’s credibility determination. This should be addressed on remand.
V. CONCLUSION
For the reasons set forth above, the decision of the Commissioner is REVERSED and
this case is REMANDED to the Commissioner for further proceedings consistent with the
Court’s Entry.
SO ORDERED: 06/04/2014

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication
9

10