Villafane v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER: re: 13 MOTION for Judgment on the Pleadings filed by Ismael Villafane, 21 CROSS MOTION for Judgment on the Pleadings filed by Commissioner of Social Security, 19 LETTER MOTION for Extension of Time addressed to Judge Valerie E. Caproni from JOHN E. GURA, Jr. dated July 16, 2014 filed by Commissioner of Social Security. For the foregoing reasons, Villafane's motion for judgment on the pleadings is DENIED, Colvin 's cross-motion for judgment on the pleadings is GRANTED, and the case is DISMISSED. The Clerk of the Court is respectfully directed to terminate Dkts. 13, 19, and 21 and to terminate the case. SO ORDERED. (Signed by Judge Valerie E. Caproni on 8/28/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ISMAEL VILLAFANE,
:
:
Plaintiff,
:
:
-against:
CAROLYN W. COLVIN, Acting Commissioner :
:
of Social Security,
:
Defendant.1 :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 8/28/2014

12-CV-7988 (VEC)
MEMORANDUM
OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:
Plaintiff Ismael Villafane brings this action pursuant to Section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking judicial review of the final determination of the
Commissioner of Social Security (the “Commissioner”) denying his application for disability
insurance benefits under the Social Security Act for the four-month period of September through
December 2007. The parties cross-moved for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure.
PROCEDURAL BACKGROUND
On August 27, 2009, Villafane applied for social security disability benefits. R. 94.2 In
December 2009, the Social Security Administration (“SSA”) denied his claim. R. 95. Villafane,
through counsel, requested and obtained review by an administrative law judge (“ALJ”), R. 11013; ALJ Edgell held a hearing on May 25, 2011, R. 70. On June 24, 2011, the ALJ issued a
written opinion denying Villafane’s application for benefits. R. 25-31. On August 30, 2012, the

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The Clerk of the Court is respectfully direct to list the Defendant as listed above.

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Citations to the administrative record, Dkt. 9, are marked “R.”

SSA’s Appeals Council declined to review the ALJ’s decision, adopting it as the final decision of
the Commissioner. R. 1.
On October 26, 2012, Villafane initiated this action. Due to an administrative error, the
Government did not file its response for nearly eighteen months. On April 30, 2014, Villafane
moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure; on July 23, 2014, the Government responded and cross-moved for judgment.
Villafane did not respond to the Government’s motion. Because substantial evidence supports
the Commissioner’s final determination and the ALJ did not commit legal error, Villafane’s
motion is DENIED, and the Commissioner’s motion is GRANTED.
FACTUAL BACKGROUND
Villafane was born in Puerto Rico in 1948; he attended some high school, earned a GED,
and attended some college. R. 72, 75. Villafane served in the United States Army during the
Vietnam War. He had worked on and off as a carpenter prior to 2002, when he was incarcerated.
R. 80. After being released in 2007, Villafane had trouble finding work because of his
conviction. Id. When he testified in 2011, Villafane reported that he had last worked as a
carpenter in late 2008 and early 2009; he testified that he left that job because his hands were in
too much pain. R. 77-78; see also R. 161.
Villafane complained of two distinct categories of injury – post-traumatic stress disorder
(“PTSD”) from his service in Vietnam and constant pain in his shoulders, hands, and wrists.
Villafane’s PTSD was diagnosed in or before 2003; at that time he was receiving treatment for
PTSD and depression from the medical personnel at Rockland County Correctional Facility. R.
208-10. The medicine that Villafane received kept him “nice and calm,” R. 212, and his drug
and alcohol addiction has been in remission since 2003, R. 84, 213, 220, 222. After he was
released from jail, in 2007, Villafane was seen by Dr. Teresa Preston (a psychiatrist), among
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others, at the Veterans Health Administration Hospital (“VA”). R. 331-37. Dr. Preston recorded
that Villafane had PTSD and polysubstance drug dependence in remission; on August 3, 2007,
she found that Villafane had a Global Assessment of Functioning (“GAF”) score of 70.3 R. 333.
During that visit Villafane reported that he had stopped taking all medication as of 2005, R. 346,
but that he was “calmer and less irritable,” and was ready to live at home with his wife and
children and “do good in society,” id. Dr. Preston diagnosed mild anxiety and minimal
depression. R. 358. In September 2007 – at the beginning of Villafane’s contested disability –
VA doctors developed a treatment plan for Villafane’s PTSD. R. 331-34. In order to help
Villafane to manage his mood and to address his anxiety and anger, the VA recommended
individual and group psychotherapy. R. 334. During these sessions Villafane “report[ed] feeling
‘good.’” R. 435-36.
Although he was still doing well immediately before the end of the relevant period, R.
435, by January 31, 2008, Villafane’s PTSD had been exacerbated; he was “feeling very
anxious” and had a GAF of 65, R. 431, 433. Villafane terminated treatment that day. When he
resumed treatment a year later he was diagnosed with moderate anxiety and moderate to severe
depression. R. 416. At that time, Dr. Preston found that his GAF was 60 based on his flat
affect, circumstantial speech and occasional panic attacks. R. 420.4 Nevertheless, Villafane was

“GAF rates overall psychological functioning on a scale of 0-100 that takes into account psychological,
social, and occupational functioning. A GAF in the range of 61 to 70 indicates ‘some mild symptoms (e.g.,
depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful
interpersonal relationships.’” Zabala v. Astrue, 595 F.3d 402, 405 n.1 (2d Cir. 2010) (quoting American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), at 34 (4th ed. rev.2000)). “The
Court notes that the Fifth Edition of the DSM has discarded the use of GAF Scores. The DSM IV, however, was in
effect at the time of [Villafane’s] treatment.” Vanterpool v. Colvin, No. 12-CV-8789(VEC)(SN), 2014 WL
1979925, at *2 n.2 (S.D.N.Y. May 15, 2014) (citation omitted).
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“A GAF in the range of 51 to 60 indicates ‘moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).’” Zabala, 595 F.3d at 406 n.3 (quoting DSM-IV at 34) (alteration omitted).

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alert, “well groomed,” “articulate[]” and “goal directed.” R. 419. Dr. Preston prescribed
medication and supportive therapy. Id.
In October 2009 Dr. Preston summarized Villafane’s conditions for the New York State
Office of Temporary and Disability Assistance. R. 292-99. Dr. Preston’s overarching diagnoses
were chronic PTSD and polysubstance dependence in full remission; she noted nightmares,
flashbacks, sleep disturbances, recurrent memories, anxiety, startled reactions, and daily
“worries” among Villafane’s symptoms. R. 293. She again assigned him a GAF of 60. R. 295.
Dr. Preston assessed that Villafane was “able to work alone but having problems with others
(avoid people, crowds and public spaces).” R. 297. She also wrote that Villafane was “not able
to work due to exacerbation of symptoms and problems with interpersonal relationships.” Id.
Two months later in December 2009, state psychologist Dr. M. Marks evaluated Villafane’s
mental condition. Dr. Marks noted anxiety, recurrent and intrusive recollections of a traumatic
experience, R. 306, and assessed Villafane with a mild restriction of activities of daily living,
moderate difficulties in maintaining social functioning and in maintaining concentration,
persistence and pace, and no repeated episodes of decompensation, R. 311. Dr. Marks found that
while Villafane was “not significantly limited” for most tasks, he was “moderately limited” in
carrying out detailed instructions, maintaining his concentration for prolonged periods,
completing a normal workday without an unreasonable number of rest periods, interacting with
the general public, accepting instructions and criticism from superiors, and responding to
changes in the workplace. R. 315-16. Ultimately Dr. Marks noted that “despite a severe
impairment, the claimant retains the capacity to understand and follow directions, sustain a
reasonable pace, relate and respond adequately in a social setting, and adapt to changes.” R. 317.
As to his physical condition, Villafane has adduced significantly less evidence. He
testified in 2011 that all of his joints, particularly his wrists, starting swelling in 2004. R. 82. He
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asserted that the prison doctors told him that he might need surgery but sent him for physical
therapy, gave him painkillers, and prescribed Humira and Methatrexate. R. 82-83. In April
2007, Villafane was treated for shoulder bursitis, which had been causing him pain since
February 2007. R. 230-31. When he saw a VA doctor for his physical ailments in July 2007,
Villafane complained of heartburn and a toenail condition, but the record reflects no complaints
of joint pain. R. 338-39. Six months after the period at issue, in June 2008, Villafane was
examined for bilateral wrist pain and masses. R. 373. Dr. Doron Ilan of Rivertown
Orthopaedics, PLLC, wrote that Villafane “states the problem has been going on for sometime
[sic] and has been getting worse. The left one actually hurts more but the right one bothers him
more because he uses this one more for work.” Id. Dr. Ilan believed that Villafane had
“[b]ilateral wrists arthrosis,” R. 374, and ordered an MRI, R. 366-67. The MRI was
inconclusive; the findings were consistent with degenerative osteoarthritis but did not rule out
inflammatory arthritis. R. 366.
Beginning in February 2009, Villafane sought regular care for the pain in his right hand
and shoulder, which he rated a seven out of ten. R. 426. A March 2009 examination by Dr.
Abbey revealed pain in the shoulders, which was diagnosed as tendonitis or bursitis, and
swelling in the wrists. R. 252. Villafane reported that over the “last few months [before March
2009] his elbows, knees and shoulders ha[d] been bothering him.” R. 253. The same report
indicated that Villafane reported that he had experienced a “year and [a] half of swelling in his
wrists,” which would include the contested period at the end of 2007, R. 254, but Dr. Abbey’s
report specifically noted that Villafane was “a very poor historian.” R. 253. In September 2009,
Villafane reported to Dr. Abbey that he could not take painkillers during the day and so he had
“major limitation of [the] use of his hands and arms because of pain.” R. 269. Dr. Abbey
diagnosed “symmetric polyarthritis,” “seronegative rheumatoid arthritis vs. other inflammatory
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arthritis,” and “left shoulder bursitis.” R. 270. Throughout 2009 and 2010 Villafane also saw
Dr. Oliver Kurucz, a rheumatologist, who injected him with Humira to address possible
rheumatoid arthritis in his wrists. R. 369-72.
Villafane applied for disability benefits with the help of counsel and was denied at every
step of the process. After the SSA adopted the ALJ’s opinion, making it the final judgment of
the Commissioner, Villafane initiated this appeal.
DISCUSSION
When reviewing an appeal from a denial of disability benefits, courts “‘conduct a plenary
review of the administrative record to determine if there is substantial evidence, considering the
record as a whole, to support the Commissioner’s decision and if the correct legal standards have
been applied.’” McIntyre v. Colvin, --- F.3d ---, No. 13-2886-cv, slip op. at 7-8 (2d Cir. July 7,
2014) (quoting Kohler v. Astrue, 546 F.3d 260, 264 (2d Cir. 2008)); see also 42 U.S.C. § 405(g).
“To be eligible to receive benefits, an applicant must be ‘insured for disability insurance
benefits.’” Kohler, 546 F.3d at 265 (quoting 42 U.S.C. § 423(a)(1)(A) and (c)(1)) (other internal
quotation marks and citation omitted). Here, Villafane must demonstrate that he had a disability
before December 31, 2007, which is the date he was last insured.
“‘Disability’ is statutorily defined as the ‘inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which has lasted
or can be expected to last for a continuous period of not less than 12 months.’” Id. (quoting 42
U.S.C. § 423(d)(1)(A)). “In evaluating disability claims, the SSA follows a five-step process
mandated by the relevant regulations:
“First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the Commissioner next considers whether
the claimant has a ‘severe impairment’ which significantly limits his physical or
mental ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical evidence, the
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claimant has an impairment which is listed in Appendix 1 of the regulations. If the
claimant has such an impairment, the Commissioner will consider him per se
disabled. Assuming the claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the claimant is unable to
perform his past work, the Commissioner then determines whether there is other
work which the claimant could perform.”
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (per curiam) (quoting Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012)) (alterations omitted); see 20 C.F.R. § 404.1520.
Although his filings are not entirely clear, the Court understands Villafane to be
challenging three aspects of the ALJ’s opinion. First, Villafane argues that the ALJ’s opinion
was not supported by substantial evidence. Second, he asserts that ALJ did not apply the
“treating physician rule.” Finally, Villafane contends that the ALJ erred by not applying post2007 diagnoses retrospectively to the relevant period. None of these arguments is persuasive.
I.

The ALJ’s Determination Was Supported by Substantial Evidence
“‘Substantial evidence’ is evidence that amounts to ‘more than a mere scintilla,’ and has

been defined as ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” McIntyre, --- F.3d at ---, slip op. at 8 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). In this case the ALJ made two separate findings that Villafane
appears to be challenging. First, the ALJ found that Villafane’s pain in his wrists and shoulders
did not, during the fall of 2007, rise to the level of a disability under the Act. R. 28 (“There is no
medical evidence of record of any severe physical impairment prior to December 31, 2007, the
date last insured.”). Second, the ALJ found that despite Villafane’s PTSD, he had the residual
functional capacity (“RFC”) to perform past relevant work as a carpenter. R. 29-30. Both of
these findings are supported by substantial evidence.
An ALJ should rule out an impairment as “not severe” under Step Two “only . . . to
screen out de minimis claims.” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); see also
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McIntyre, --- F.3d at ---, slip op. at 12. Still, “‘[t]he mere presence of a disease or impairment, or
establishing that a person has been diagnosed for a disease or impairment is not, by itself,
sufficient to render a condition severe.’” Perez v. Colvin, No. 13-CV-3713(AJP), 2014 WL
2462992, at *12 (S.D.N.Y. June 2, 2014) (quoting McDowell v. Colvin, No. 11-CV1132(NAM/VEB), 2013 WL 1337152, at *6 (N.D.N.Y. Mar. 11, 2013), report & rec. adopted by
2013 WL 1337131 (N.D.N.Y. Mar. 29, 2013)). The ALJ here determined that Villafane’s
physical infirmities, as they existed prior to December 31, 2007, were de minimis. See R. 28.
While Villafane had been treated for bursitis of his shoulder in prison, he did not mention any
pain in his joints when he underwent a physical examination in July 2007. R. 338-39. The
evidence in the record that Villafane was in pain after December 31, 2007, does not suggest that
the cause of the pain constituted a disability during the relevant time period. Accord Wagner v.
Sec’y of Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990); see Part III, infra.
Although Villafane testified that his joint pain began in 2004, R. 82, Villafane also testified that
he performed relevant work as a carpenter after the time period, stopping in 2009 when his joint
pain worsened. R. 78-79, 82. Thus, there was substantial evidence to support the ALJ’s
determination that Villafane had only de minimis joint pain during the contested period.
Villafane also challenges the ALJ’s determination that he “had the residual functional
capacity to perform a full range of work at all exertional levels but without high contact with the
public.” R. 29. Unlike his physical condition, which was largely untreated until 2009 when it
worsened to the point where it affected his work, Villafane’s PTSD is the subject of several
medical reports during the contested period. These reports indicate that Villafane’s PTSDrelated anxiety and anger were well under control. R. 333. His GAF, assessed by his treating
physician, was 70. R. 436-37; cf. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (per
curiam) (affirming judgment that claimant with a GAF score of 60 was not disabled); Martinez v.
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Astrue, No. 10-CV-9284(PKC), 2012 WL 4761541, at *12-13 (S.D.N.Y. Aug. 1, 2012). In fact,
Villafane told his doctors that he wanted to “do good in society” and that his focus was on
“get[ting] back to life and not get[ting] in trouble anymore.” R. 346. Villafane reported that he
was not depressed or symptomatic. Id. In his first visit after the relevant period, on January 31,
2008, Villafane had a GAF of 65 and reported anxiety, but was alert, oriented, cooperative,
articulate, and “goal directed.” R. 433. This evidence is more than sufficient to support the
ALJ’s determination that Villafane’s PTSD would not meaningfully inhibit his ability to work
productively, with limitations in his interactions with the public. R. 29-30; see also R. 317.
II.

The ALJ Properly Applied the Treating Physician Rule
“With respect to ‘the nature and severity of a claimant’s impairment(s),’ ‘the SSA

recognizes a ‘treating physician’ rule of deference to the views of the physician who has engaged
in the primary treatment of the claimant.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(d)(2) and Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.
2003)) (alterations omitted). Villafane identifies Dr. Preston as the treating physician to whom
the ALJ allegedly accorded insufficient weight. Villafane Br. at 9-10. This argument lacks all
merit. The ALJ specifically referred to Dr. Preston’s August 2, 2007 evaluation – the same
evaluation cited by Villafane – in assessing the claimant’s RFC. See R. 30. Dr. Preston’s
evaluations revealed that Villafane’s GAF was 70 and that he did not have marked symptoms in
August or December 2007. Villafane reiterates that he was diagnosed with PTSD based on his
combat experiences and that he suffers nightmares and flashbacks. There is ample evidence to
support these claims, but Villafane does not connect them to the ALJ’s determination of his
RFC. The ALJ credited Dr. Preston’s diagnoses but, based on her reports in addition to Dr.
Marks’s analysis, found that despite his acknowledged conditions, Villafane could perform past
relevant work as a carpenter. R. 29-30. This finding is entirely consistent with the treating
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physician rule. “Plaintiff’s treating physician offered evidence that Plaintiff was asymptomatic
and without any functional limitations. The ALJ did not reject the treating physician’s opinion.
Rather, the ALJ accepted Dr. [Preston]’s opinion—at least to the extent that it indicated an
ability to perform [work without public interaction].” Infante v. Apfel, No. 97-CV-7689(LMM),
2001 WL 536930, at *6 (S.D.N.Y. May 21, 2001) (citations omitted); see also Carvey v. Astrue,
No. 06-CV-737(NAM), 2009 WL 3199215, at *12 (N.D.N.Y. Sept. 30, 2009) (no error where
“the ALJ did not reject [the treating physician’s] opinion and there is no evidence to suggest that
[the physician] did not adequately describe plaintiff’s condition”).
III.

The ALJ Did Not Err in Her Application of Post-Period Diagnoses
Finally, Villafane argues that the ALJ erred by failing to account for diagnoses of his

conditions after the relevant period as “retrospective diagnoses,” relevant under Wagner, 906
F.2d 856. “Wagner reversed the Secretary’s finding of no disability when no medical opinion in
evidence contradicted one doctor’s retrospective diagnosis finding a disability.” Rivera v.
Sullivan, 923 F.2d 964, 968 (2d Cir. 1991). In fact, the treating physician in Wagner
“consistently took the position before the Secretary that his patient was disabled,” but did not
diagnose the cause of the claimant’s symptoms until after the period had ended. Wagner, 906
F.2d at 858. Once the physician diagnosed the cause of the symptoms, he stated unequivocally
that it was his “opinion that this patient ha[d] been totally and permanently disabled since [the
beginning of the relevant period].” Id. at 859.
This case is nothing like Wagner. Whereas the SSA determination in Wagner ignored the
treating physician’s reports of the claimant’s symptoms, the ALJ here specifically credited Dr.
Preston’s August 2007 examination. R. 30. The only report that Dr. Preston issued that could be
read “retrospectively” to suggest that Villafane lacked the ability to perform carpentry work is
her 2009 report indicating that Villafane was “not able to work due to exacerbation of symptoms
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and problems with interpersonal relationships.” R. 297. By its own terms, this states that
Villafane’s symptoms had grown worse (i.e., were exacerbated) after the period in question – a
stark contrast to Wagner, in which the treating physician explicitly wrote that the symptoms were
present from the beginning of the period. 906 F.2d at 859. Moreover, in the same report Dr.
Preston noted that Villafane was “able to work alone but having problems with others,” R. 297, a
problem the ALJ noted in Villafane’s RFC assessment, R. 30. Finally, this is not a case in which
“no medical opinion in evidence contradict[s] [a] doctor’s retrospective diagnosis finding a
disability,” Rivera, 923 F.3d at 968, or “a diagnosis emerge[d] after the close of administrative
proceedings that ‘sheds considerable new light on the seriousness of a claimant’s condition,’”
Lisa v. Sec’y of Dep’t of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991) (quoting
Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985)) (alterations omitted). In fact, applying Dr.
Preston’s October 2009 findings to 2007 would directly contradict Dr. Preston’s
contemporaneous notes from August and December 2007, all of which made it clear that
Villafane was capable of working at that time. See, e.g., R. 435-39, 330-33.
Insofar as Villafane intends to argue that his physical impairments precluded his work
during the relevant period, this too is unpersuasive. First, there is no evidence that any treating
physician has diagnosed Villafane with severe wrist and shoulder problems that began as early as
2007. Some of the possible diagnoses that his doctors have discussed include degenerative
conditions that could well have begun during the relevant period but only worsened to the point
that Villafane reported pain to his treating physicians after the relevant period. See, e.g., R. 366.
Consistent with that notion, Villafane actually performed carpentry work after the relevant
period. R. 77-78. Far from asserting that Villafane’s condition precluded him from work during
the relevant period, Villafane’s treating physician suggested that he was not credible with regard
to the onset date of his symptoms. R. 253.
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The ALJ did not err by finding that Villafane’s post-period conditions, if any, did not
disable him during the period from September 1, 2007, through December 31, 2007.
CONCLUSION
For the foregoing reasons, Villafane’s motion for judgment on the pleadings is DENIED,
Colvin’s cross-motion for judgment on the pleadings is GRANTED, and the case is
DISMISSED. The Clerk of the Court is respectfully directed to terminate Dkts. 13, 19, and 21
and to terminate the case.
SO ORDERED.
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VALERIE CAPRONI
I
United States District Judge

Date: August 28, 2014
New York, NY

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