Schraut v. Social Security Administration, Commissioner

Filing 15

OPINION AND ORDER: The Court DENIES Plaintiff's 10 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 14 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 11/1/2013. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Donna Schraut,
Plaintiff,
v.

Civil Action No. 2:13-cv-27

Commissioner of Social Security,
Defendant.

OPINION AND ORDER
(Docs. 10, 14)
Plaintiff Donna Schraut brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner
of Social Security denying her application for disability insurance benefits. Pending
before the Court are Schraut’s motion to reverse the Commissioner’s decision (Doc. 10),
and the Commissioner’s motion to affirm the same (Doc. 14). For the reasons stated
below, the Court DENIES Schraut’s motion and GRANTS the Commissioner’s motion.
Background
Schraut was forty-four years old on her alleged disability onset date of
October 25, 2008. She has a high school education and work experience as a restaurant
supervisor, a cashier/stocker at a fast-food restaurant, a deli worker, a prep cook, a
factory worker, and a daycare assistant. She was fired from her most recent two jobs for
stealing money from her employer.

Schraut is divorced, and has two grown children and one grandchild. She lives in
an apartment with her boyfriend. On a typical day, Schraut watches television, talks on
the phone, visits friends, plays with her friend’s children, works on the computer, cares
for her kitten, and works on puzzle books. She is able to manage her own daily needs,
but her boyfriend, who she claims is also disabled, does most of the cooking and
household chores.
Schraut is morbidly obese, and suffers from lower back pain, leg pain, and left
shoulder pain. She alleges that, as a result of this pain, she is unable to stand for longer
than five minutes at a time, unable to sit for longer than one hour at a time, and unable to
lift her arm above shoulder level. She uses a cane to assist with ambulation, and lies
down for approximately two hours each day due to pain. She also suffers from anxiety
and depression; and, to a lesser degree, sleep apnea, acid reflux, and daily headaches.
She reports hearing voices, seeing shadows, and not wanting to go out in public. She
alleges that her mind is always wandering, and that she has difficulty maintaining
sufficient concentration to complete daily tasks and do activities such as watching
television and playing bingo.
In September 2009, Schraut filed applications for social security income and
disability insurance benefits. In her disability application, she alleged that, starting on
October 25, 2008, she has been unable to work due to depression, anxiety, inability to
walk, difficulty sitting and standing, concentration deficiencies, and sleep problems. (AR
179.) She stated that she stopped working on May 1, 2009 due to “mood and attitude”
problems. (Id.) Schraut’s application was denied initially and upon reconsideration, and
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she timely requested an administrative hearing. The hearing was conducted in July 2011
by Administrative Law Judge (ALJ) Paul Martin. (AR 39–79.) Schraut appeared and
testified, and was represented by an attorney. A vocational expert (VE) also testified at
the hearing. A few weeks later, the ALJ issued a decision finding that Schraut was not
disabled under the Social Security Act at any time from her alleged disability onset date
through the date of the decision. (AR 19–32.) Thereafter, the Appeals Council denied
Schraut’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (AR 1–3.) Having exhausted her administrative remedies, Schraut filed
the Complaint in this action. (Doc. 3.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether that impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the Listings). 20 C.F.R. §§ 404.1520(d), 416.920(d). The
claimant is presumptively disabled if his or her impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

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If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (RFC), which means the most the claimant can
still do despite his or her mental and physical limitations based on all the relevant
medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1),
416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the
claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§
404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the
claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant
bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at
383; and at step five, there is a “limited burden shift to the Commissioner” to “show that
there is work in the national economy that the claimant can do,” Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step
five is limited, and the Commissioner “need not provide additional evidence of the
claimant’s [RFC]”).
Employing this sequential analysis, ALJ Martin first determined that Schraut had
not engaged in substantial gainful activity since her alleged onset date of
October 25, 2008. (AR 22.) At step two, the ALJ found that Schraut had the following
severe impairments: degenerative disc disease with mild stenosis at L4–5, morbid
obesity, mild degenerative joint disease in the left shoulder with bursitis/tendonitis, major
depression, and anxiety disorder. (Id.) The ALJ found that Schraut’s obstructive sleep
apnea, urinary incontinence, headaches, and hearing/speech deficits were nonsevere.
(AR 23.) At step three, the ALJ found that none of Schraut’s impairments, alone or in
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combination, met or medically equaled a listed impairment. (AR 23–24.)
Next, the ALJ determined that Schraut had the RFC to perform light work, as
defined in 20 C.F.R. § 404.1567(b), except as follows:
[Schraut is able] to stand and/or walk for up to 2 hours in an 8-hour
workday and to sit for up to 6 hours in an 8-hour workday. She is able to
climb stairs and ramps on an occasional basis but is unable to climb
ladders, ropes or scaffolds. She is able to perform occasional stooping,
crouching, kneeling and crawling[,] but is unable to perform any overhead
work activity with her left, non-dominant arm/hand. She must avoid
exposure to excessive wetness or humidity. [Schraut] is able to understand,
remember and carry out simple one to three step tasks. She is generally
able to concentrate and persist on tasks for two[-]hour blocks on a
consistent basis, however, may experience episodic exacerbations of her
symptoms of depression and anxiety, which temporarily undermine her
ability to maintain cognitive efficiency, and result in the need for periodic,
unscheduled rest breaks of a couple minutes[’] duration several times each
day. She is able to function in a position which requires only
passing/casual interaction with the public. She is able to deal on a routine
basis with co[]workers and supervisors and is able to deal with routine
changes at work.
(AR 25–26.) Given this RFC, the ALJ found that Schraut was unable to perform her past
relevant work as a cashier/stocker, prep cook, daycare assistant, and restaurant
supervisor. (AR 30.) Nonetheless, based on testimony from the VE, the ALJ determined
that Schraut could perform other jobs existing in significant numbers in the national
economy, including marker, solderer, assembly machine tender, and final inspector. (AR
31.) The ALJ concluded that Schraut had not been under a disability from her alleged
disability onset date through the date of the decision. (Id.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
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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 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d
Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the fact[-]finder.”). “Substantial evidence” is more
than a mere scintilla; it means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the
Social Security Act is “a remedial statute to be broadly construed and liberally applied.”
Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).
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Analysis
Schraut argues that the ALJ made the following errors: (1) misstated or omitted
relevant facts; (2) gave too much weight to the opinions of non-examining agency
psychologists and too little weight to the opinion of Schraut’s treating mental health
nurse practitioner; (3) failed to properly evaluate Schraut’s obesity; and (4) improperly
determined that Schraut was not fully credible. The Commissioner disagrees, asserting
that the ALJ’s decision complies with the applicable legal standards and is supported by
substantial evidence.
I.

ALJ’s Characterization of the Evidence
Schraut argues that the ALJ misstated or improperly omitted certain evidence.

First, she claims the ALJ erroneously stated that Schraut’s cane was not “medically
prescribed.” (AR 27.) In support of this argument, Schraut points to an emergency room
note which states: “[s]uggest use of a cane.” (AR 432.) This statement by an emergency
room physician is hardly the equivalent of a treating physician’s prescription of a cane for
medical reasons. In fact, substantial evidence supports the ALJ’s statement that “there is
no evidence that [a cane] has ever been medically prescribed” for Schraut. (AR 27.)
Although there are medical notes in the record which state that Schraut uses a cane and
walks with an antalgic gait (see, e.g., AR 666, 714), several of Schraut’s treating medical
providers stated that Schraut did not need the cane. For example, Schraut’s treating
mental health counselor, Corina Rose, stated that Schraut “use[s] a cane[,] however does
not bear any weight on [it] or complain about back [problems] or problems with
walking.” (AR 711.) Likewise, Schraut’s treating nurse practitioner, Kathleen Jackman,
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stated that Schraut “[a]mbulat[es] with [a] cane but [is] able to walk well without it.”
(AR 568.) Similarly, Schraut’s treating physical therapist, Traci Glanz, stated that
Schraut “ambulate[s] with a cane, but does not put weight [on] it at all during session.”
(AR 536.) The evidence suggesting that Schraut did not need a cane is more
overwhelming than the evidence suggesting that she needed one. And where, as here,
there are arguable conflicts in the medical evidence, the Commissioner—not the court—
is charged with resolving them. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Moreover, the ALJ’s statement that a cane was not medically prescribed for Schraut is
accurate.
Second, Schraut argues that the ALJ was incorrect in stating that Schraut “did not
pursue, and even declined, physical therapy.” (Doc. 10 at 16.) In fact, the ALJ stated as
follows: “[Schraut] was discharged from physical therapy in early 2010 due to a failure to
appear. Subsequently compiled records note her lack of interest in pursuing any further
physical therapy.” (AR 27 (citation omitted).) These statements are factually correct,
and the ALJ accurately cited to the evidence supporting them. (Id. (citing AR 531–46,
629–59).) Specifically, the record reflects that Schraut was discharged from physical
therapy in January 2010 because she “did not come in for [an] appointment” and was
unreachable by phone. (AR 634; see also AR 657–58.) She was discharged again in
March 2010 because she was “[n]on-compliant with appointments.” (AR 645; see also
AR 642–44.) Her “lack of interest” in pursuing physical therapy (AR 27) is also clearly
documented in the record. For example, Schraut’s treating psychologist, Dr. Joann Joy,
noted that Schraut “tried physical therapy, but did not find [it] helpful” (AR 542), and
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that Schraut “stated no interest in attending a functional restoration program” (AR 544).
Similarly, Schraut’s treating physician’s assistant, Robert Hemond, stated that Schraut
was “not interested in [physical therapy] and had “no goals” for occupational therapy.
(AR 670.)
Next, Schraut asserts that the ALJ mischaracterized Schraut’s testimony regarding
her 2010 work/community service activity. (Doc. 10 at 17.) The ALJ stated: “At [the]
hearing, [Schraut] testified that she . . . completed ten days on a work crew, followed by
completing community service stocking books, making jewelry, cleaning, etc., all tasks
that run counter to her allegations of total disability.” (AR 26–27.) The record supports
this statement. At the administrative hearing, Schraut testified that she “had to do work
crew for [ten] days, and then . . . had to do community service for another [ten].” (AR
50.) She described the community service as “stacking books . . ., making jewelry[,] . . .
[and] cleaning and helping to organize stuff.” (Id.) Other than stating that Schraut
stocked instead of stacked books, the ALJ’s summary of Schraut’s testimony is accurate.
The ALJ was not required to recite the details of this activity, including that Schraut
participated in community service for only four hours a day (AR 60) and sat while
making jewelry (AR 50). See Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir.
2012) (“Although required to develop the record fully and fairly, an ALJ is not required
to discuss every piece of evidence submitted.”) (quotation marks omitted). Moreover, it
was proper for the ALJ to consider Schraut’s ability to engage in limited
work/community service activity during the alleged disability period, even if that activity
was for less than an eight-hour workday. See 20 C.F.R. § 404.1571 (“Even if the work
9

you have done was not substantial gainful activity, it may show that you are able to do
more work than you actually did.”); Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008)
(“[T]he fact that [the claimant] could perform some work cuts against his claim that he
was totally disabled.”). This is especially true given that there is evidence indicating that
Schraut may have been engaging in even full-time work during the alleged disability
period. (See, e.g., AR 321 (January 2009 treatment note stating that Schraut was
“working full time at Bob’s store in Barre.”).)
Schraut’s remaining arguments regarding the ALJ’s purported “distort[ion]” of the
evidence (Doc. 10 at 18) fail for the same reasons stated above. As noted, the ALJ is not
required to discuss every piece of evidence in his decision, see Brault, 683 F.3d at 448;
and it is for the Commissioner, not the court, to weigh conflicting evidence in the record,
see Veino, 312 F.3d at 588. Even where the court might have reached a different
conclusion had the matter come before it in the first instance, the court must defer to the
Commissioner’s resolution of conflicting evidence. Clark v. Comm’r of Soc. Sec., 143
F.3d 115, 118 (2d Cir. 1998); Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009) (“If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.”) (quotation marks omitted). Moreover, the court “may
only set aside a determination which is based upon legal error or not supported by
substantial evidence.” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Here, as
discussed in more detail below, substantial evidence supports the ALJ’s detailed decision,
including his discussion of the medical evidence and Schraut’s daily activities.
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Particularly noteworthy, Schraut finds fault with the ALJ’s statement that
“[Schraut] . . . states that she has never had problems with the people she worked with.”
(AR 28.) But at the administrative hearing, Schraut did indeed state “No” in response to
the ALJ’s question: “[D]id you ever have trouble getting along with the people you
worked with?.” (AR 60.) And in a Function Report, Schraut checked off a box stating
“No” in response to the question: “Do you have any problems getting along with family,
friends, neighbors, or others?.” (AR 223.) Moreover, examining psychologist, Dr.
Gregory Korgeski, stated in his December 2009 Psychological Evaluation that Schraut
reported to him that, “despite mood swings, when she worked[,] she was consistently able
to . . . maintain at least basically adequate interpersonal relationships with others without
conflicts.” (AR 354.) This is a case where the ALJ’s factual findings, such as the finding
that Schraut has not had problems with her coworkers, are supported by substantial
evidence, although there is also conflicting evidence in the record.
II.

ALJ’s Analysis of the Medical Opinions
Schraut argues that the ALJ erred in his analysis of the medical opinions by

affording too much weight to the opinions of non-examining agency psychologists Drs.
Ellen Atkins and William Farrell, and not enough weight to the opinion of treating nurse
practitioner James Greenleaf. The Commissioner disagrees.
The Court finds that substantial evidence supports the ALJ’s allocation of weight
to the treating and non-treating medical source opinions. Although in many cases it is
proper for the ALJ to give reduced weight to the opinions of non-examining agency
consultants such as Drs. Atkins and Farrell in comparison to the weight afforded to
11

examining sources such as Nurse Greenleaf; the regulations clearly permit the opinions of
non-examining agency consultants to override those of examining sources, when the
former are more consistent with the record evidence than the latter. See Diaz v. Shalala,
59 F.3d 307, 313 n.5 (2d Cir. 1995) (citing Schisler v. Sullivan, 3 F.3d 567–68 (2d Cir.
1993)); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996). Here, for the reasons
explained below, the Court finds that the opinions of agency consultants Drs. Atkins and
Farrell are more consistent with the record evidence than the opinion of Nurse Greenleaf.
A.

Treating Nurse Practitioner Opinion

In a January 2011 Medical Source Statement of Ability to Do Work-Related
Activities (Mental) (MSS), Nurse Greenleaf opined that Schraut had “[m]arked”
limitations in all mental functional areas, and symptoms such as mood instability and
auditory hallucinations that “severely impact[ed] her ability to understand [and] respond
appropriately to instructions.” (AR 599.) The ALJ gave “limited weight” to this opinion
on the grounds that it is inconsistent with Nurse Greenleaf’s own treatment notes and the
record as a whole, including Schraut’s daily activities and level of social interaction. (AR
29.)
ALJs are not required to afford the same level of deference to the opinions of
“other sources,” including nurse practitioners such as Nurse Greenleaf, as they are to the
opinions of “acceptable medical sources,” including physicians. See 20 C.F.R. §
404.1513(a), (d); SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006). “[W]hile the
ALJ is certainly free to consider the opinions of . . . ‘other sources’ in making his overall
assessment of a claimant’s impairments and residual abilities, those opinions do not
12

demand the same deference as those of a treating physician.” Genier v. Astrue, 298 F.
App’x 105, 108 (2d Cir. 2008) (citation omitted). Nonetheless, “other source” opinions
are important, and ALJs are required to evaluate them in some depth. SSR 06-03p, 2006
WL 2329939, at *3 (“Opinions from these [other] sources, who are not technically
deemed ‘acceptable medical sources’ under our rules . . . should be evaluated on key
issues such as impairment severity and functional effects, along with the other relevant
evidence in the file.”). The Social Security Administration directs ALJs to use the same
factors for the evaluation of “other source” opinions as are used to evaluate the opinions
of “acceptable medical sources.” Id. at *4. These factors include the length of the
treatment relationship, the frequency of evaluation, the degree to which the medical
source provided evidentiary support for his or her opinion, and the opinion’s consistency
with the record as a whole. Id.; see 20 C.F.R. § 404.1527(c)(2)–(4).
In evaluating Nurse Greenleaf’s opinion, the ALJ focused on two of these factors,
finding that: (1) the opinion is not supported by Nurse Greenleaf’s own treatment notes;
and (2) the opinion is inconsistent with the record as a whole. (AR 29.) Substantial
evidence supports these findings. Specifically, although some of Nurse Greenleaf’s
treatment notes indicate that Schraut reported increased symptoms and ineffective
medication trials, other treatment notes indicate that Schraut’s symptoms improved with
medication. For example, in December 2009, Nurse Greenleaf recorded that, although
Schraut still had “occasional episodes of irritability and mood swings,” she “has noted
some improvement in her mood and mood stability.” (AR 357.) In November 2010,
Nurse Greenleaf stated that Schraut was “sleeping better with the use of Temazepam,”
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and her mood was good, although she still had episodes of irritability. (AR 583.) Nurse
Greenleaf further stated that Schraut “feels the medications are effective and wishes to
continue the current medication at the current doses.” (Id.) In May 2011, Nurse
Greenleaf recorded that, although Schraut felt tired much of the time, her mood was
“improved with the increase in the Sertraline” and she only “rare[ly]” had auditory
hallucinations. (AR 603.) Around the same time, Schraut’s treating mental health
counselor concurred, stating that Schraut reported that her medications were “working for
her.” (AR 627.) Also significant, as noted by the ALJ, despite Nurse Greenleaf’s
opinion that Schraut was markedly limited in her mental functioning, none of his
treatment notes include or even consider a referral for psychiatric evaluation or
hospitalization. (AR 29.)
The ALJ also found that Nurse Greenleaf’s opinion is inconsistent with the record
as a whole. Substantial evidence supports this finding. With respect to medical
evidence, consulting psychologist Terry Padilla found that Schraut had “no cognitive
impairment.” (AR 452.) Similarly, consulting psychologist Dr. Gregory Korgeski stated
that, although Schraut exhibited “nervous mannerisms” and “spoke at a louder [than
normal] volume,” she maintained fairly good eye contact, was pleasant to interact with,
and exhibited no evidence of a thinking disorder. (AR 362.) Dr. Korgeski further
observed that Schraut “did not appear to manifest hallucinations or delusions, . . . nor did
she seem to have distorted perceptions of what was going on.” (Id.) He noted that
Schraut was dealing with “a fairly chaotic number of problem situations,” which she
seemed “rather preoccupied with.” (Id.) Despite this preoccupation, Dr. Korgeski stated
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that when Schraut worked, although she had mood swings, she was consistently able to
maintain attendance, concentration, and “basically adequate” interpersonal relationships
with others without conflicts”; and was able to complete tasks without significant
interference. (Id.)
The non-medical evidence, principally Schraut’s daily activities, also demonstrate
that Schraut had a higher level of mental functioning than opined by Nurse Greenleaf.
Specifically, the record—including Schraut’s own self-reporting—demonstrates that,
during the alleged disability period, Schraut worked on up to a full-time basis, looked for
work, and participated in a vocational rehabilitation program. (AR 198 (“continues to
work at the deli but is hoping to find a full[-]time job”; “interviewed at Capitol Candy”;
“continues in an active job search”), 199 (“may consider full[-]time kitchen
prep/dishwashing for short[-]term [work]”), 200 (“continues to work at Bob’s store in the
deli but she is getting between 25-30 hrs per week and that isn’t enough[;] [s]he wants
full[-]time work[;] [s]he has applied to a number of places but the job market is tight”),
305 (“is going to go to Voc Rehab. [and] is going to try to work at Capital Candy”), 314
(“is working at Bob’s”), 321 (“is working full time at Bob’s store”).) She also was able
to drive a car, shop in stores, handle her finances, get up early in the morning and drive
her boyfriend to work, regularly visit a friend, and work on puzzle books for fifteen
minutes at a time. (AR 217, 220, 221, 353, 583.) As mentioned above, Schraut told Dr.
Korgeski that, although her relationships with coworkers were limited, she was
nonetheless able to do her jobs properly. (AR 352.) She further stated that, other than
stealing from multiple employers, “she did not have particular difficulties on her jobs.”
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(AR 353.) A former employer agreed, reporting that Schraut generally could do all job
functions—including for example learning job duties, working with coworkers, and
adapting to work changes—without problems. (AR 243–44.) In contrast, Nurse
Greenleaf described an individual who was severely limited in her ability to understand
and respond appropriately to instructions, and had marked limitations in interacting with
the public and coworkers. (AR 599, 600.)
Also noteworthy, only a few months after Nurse Greenleaf opined that Schraut
was markedly limited in her mental functioning, Schraut told mental health counselor
Corina Rose that she was unable to work due to her physical symptoms, not her mental
problems. (AR 627; see also AR 591.) Likewise, at the administrative hearing, Schraut
testified that her physical impairments were more limiting than her mental problems.
(AR 51–52.)
In sum, the Court finds that the ALJ provided good reasons to afford limited
weight to Nurse Greenleaf’s opinion, and this decision is supported by substantial
evidence.
B.

Agency Psychologist Opinions

Conversely, the Court finds that the ALJ provided good reasons to afford
substantial weight to the opinions of consulting agency psychologists Drs. Atkins and
Farrell, and that decision is supported by substantial evidence, as discussed below.
In January 2010, after reviewing the evidence, agency psychologist Dr. Atkins
opined that Schraut retained the mental capacity to: understand and remember one-tothree-step instructions; sustain concentration, persistence, and pace for two-hour periods;
16

collaborate with supervisors, cooperate with coworkers, and maintain basic social
interactions; and set goals, travel, avoid hazards, and adapt to changes at work. (AR
366.) In June 2010, after conducting an independent review of Schraut’s records, Dr.
Farrell affirmed Dr. Atkins’s findings. (AR 458.) Considering that Drs. Atkins and
Farrell had special expertise in assessing mental impairments, and finding that their
opinions were consistent with the evidence as a whole, the ALJ gave “substantial weight”
to these opinions. (AR 29.)
Schraut claims these opinions were deficient because they were made without
consideration of certain relevant evidence. First, Schraut claims Drs. Atkins and Farrell
rendered their opinions “without the benefit of NP Greenleaf’s treatment records [and]
opinion evidence.” (Doc. 10 at 20.) But in fact, treatment records from Nurse Greenleaf
date back to October 2009 (AR 347–39), almost three months before Dr. Atkins rendered
her opinion in January 2010 (AR 366) and over eight months before Dr. Farrell rendered
his opinion in June 2010 (AR 458). And Drs. Atkins and Farrell explicitly considered
Nurse Greenleaf’s October and November 2009 treatment records in their reports, stating
that Schraut “was seen for psychiatric eval[uation] and medication in 10/09 and 11/09,”
and “was diagnosed with psychotic episode because she reported hearing sounds and
seeing shadows, but these events lessened and were not considered bothersome by her
appointment on 11/3/2009.” (AR 366, 458; see also AR 345–49.) Moreover, Schraut
fails to explain how Nurse Greenleaf’s treatment notes and opinion would have affected
the opinions of Drs. Atkins and Farrell. Given that Nurse Greenleaf’s opinion is
inconsistent with the record, as discussed above, the argument fails.
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Next, Schraut asserts that Drs. Atkins and Farrell rendered their opinions without
considering a report prepared by psychologist Dr. Joann Joy. (Doc. 10 at 20.) In this
report, Dr. Joy diagnosed Schraut with major depressive disorder, severe social phobia,
and pain disorder. (AR 544.) Dr. Joy noted that Schraut “experienc[ed] a significant
level of psychological distress related to depression in the severe range[,] and anxiety.”
(Id.) Despite these findings, Dr. Joy did not identify any specific mental limitations.
Moreover, Dr. Joy, a psychologist, connected her opinion that Schraut was “relatively
limited” in her level of functioning principally to Schraut’s physical pain and not to her
mental problems. (Id.) Dr. Joy stated: “Due to her current pain issues, [Schraut] has
been unable to work and . . . has difficulty with household chores.” (Id.) She also stated:
“Schraut’s level of functioning appears to be relatively limited at this point and her pain
appears to have significantly changed her lifestyle.” (Id.) Thus, Dr. Joy’s report is not
inconsistent with Dr. Atkins’s and Dr. Farrell’s opinions regarding Schraut’s mental
limitations.
Finally, Schraut claims that Drs. Atkins and Farrell made their opinions “prior to
[Schraut] initiating counseling with Ms. Rose.” (Doc. 10 at 19–20.) Although this is true
with respect to Dr. Atkins’s opinion, the record reveals that Schraut began her mental
health treatment with Rose over two months before Dr. Farrell rendered his opinion. (AR
458, 591–93.) More importantly, despite Rose’s diagnosis of major depression (AR 593),
like Dr. Joy, Rose did not identify any specific mental limitations. In fact, Rose seems to
ascribe Schraut’s psychosocial problems largely to financial pressures. (AR 591.)
Furthermore, and also like Dr. Joy, Rose stated that Schraut’s physical limitations,
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including her back and leg pain, were more significant than her mental limitations. (See,
e.g., AR 591, 627.)
Accordingly, even accepting that Drs. Atkins and Farrell rendered their opinions
before certain medical evidence existed, Schraut fails to demonstrate that this evidence—
including the treatment notes and opinions of Nurse Greenleaf, Dr. Joy, and counselor
Rose—would have altered their opinions.
III.

ALJ’s Consideration of Schraut’s Obesity
Next, Schraut argues that the ALJ should have considered and evaluated her

morbid obesity at step three (the Listings) and in assessing her RFC, as required by Social
Security Ruling (SSR) 02-1p. (Doc. 10 at 23–24.) SSR 02-1p provides that, although
obesity is not a listed impairment, it is considered a “severe” impairment when, alone or
in combination with another impairment, it significantly limits a claimant’s physical or
mental ability to do basic work activities. 2000 WL 628049, at *4 (Sept. 12, 2002). The
Ruling states: “The combined effects of obesity with other impairments may be greater
than might be expected without obesity. . . . As with any other impairment, we will
explain how we reached our conclusions on whether obesity caused any physical or
mental limitations.” Id. at *6, 7. The Sixth Circuit observed that SSR 02-1p does not
mandate a particular mode of analysis in obesity cases: “It is a mischaracterization to
suggest that Social Security Ruling 02-01p offers any particular procedural mode of
analysis for obese disability claimants.” Bledsoe v. Barnhart, 165 F. App’x 408, 411–12
(6th Cir. 2006). And the Third Circuit explained that the standard for evaluating a
claimant’s obesity under SSR 02-1p is simple: “[A]n ALJ must meaningfully consider the
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effect of a claimant’s obesity, individually and in combination with her impairments, on
her workplace function at step three and at every subsequent step.” Diaz v. Comm’r of
Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).
Here, the ALJ determined that Schraut’s morbid obesity was a severe impairment
(AR 22), and stated at least twice in his decision that Schraut’s back impairment was
“compounded by her morbid obesity” (id.; AR 27). The ALJ also noted a treating nurse
practitioner’s opinion that Schraut’s back pain was “likely related to obesity.” (AR 27
(citing AR 555).) Furthermore, in determining Schraut’s RFC, the ALJ relied on the
opinion of agency consultant Dr. Geoffrey Knisely (AR 29), and Dr. Knisely explicitly
considered Schraut’s obesity in his Physical RFC Assessment, stating that Schraut “is
obese, 63 [inches] and 240 pounds” (AR 475). See Coldiron v. Comm’r of Soc. Sec., 391
F. App’x 435, 443 (6th Cir. 2010) (ALJ’s evaluation of claimant’s obesity proper where
ALJ discussed obesity throughout decision; and in determining claimant’s RFC, relied on
opinions of physicians who accounted for claimant’s obesity); see also Skarbek v.
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (although ALJ did not explicitly consider
claimant’s obesity, evaluation proper because ALJ adopted limitations suggested by
specialists and reviewing doctors who were aware of claimant’s obesity). Schraut fails to
state any particular limitation(s) on her ability to work that allegedly was caused either by
her obesity alone or the combination of her obesity and other impairments. Accordingly,
the Court finds no error in the ALJ’s consideration of Schraut’s obesity.

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IV.

ALJ’s Credibility Determination
Lastly, Schraut asserts that the ALJ’s credibility determination is not supported by

the record. (Doc. 10 at 24.) It is the province of the Commissioner, not the reviewing
court, to “appraise the credibility of witnesses, including the claimant.” Aponte v. Sec’y
of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984) (quotation marks omitted).
If the Commissioner’s findings are supported by substantial evidence, the court must
uphold the ALJ’s decision to discount a claimant’s subjective complaints. Id. (citing
McLaughlin v. Sec’y of Health, Educ., and Welfare, 612 F.2d 701, 704 (2d Cir. 1982)).
“When evaluating the credibility of an individual’s statements, the adjudicator must
consider the entire case record and give specific reasons for the weight given to the
individual’s statements.” SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996).
Here, the ALJ gave several specific reasons in support of his determination that
Schraut’s statements concerning the intensity, persistence, and limiting effects of her
symptoms were “not fully credible.” (AR 26.) First, the ALJ accurately stated that,
despite Schraut’s alleged disability onset date of October 25, 2008, she was able to work
until May 2009, and her employment ended at that time not due to her mental or physical
impairments but rather due to her theft of money from her employer. (AR 26, 47–51,
360.) The ALJ also accurately noted that, after Schraut’s job ended in May 2009, she
was able to complete ten days on a work crew followed by community service work.
(AR 26.) It was proper for the ALJ to consider this evidence in determining Schraut’s
credibility, even if the work/community service was only part time. See 20 C.F.R. §
404.1571; Berger, 516 F.3d at 546. The ALJ also accurately stated that, in addition to
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Schraut losing her job in May 2009 due to theft, she “had previously had some issues
with stealing when working.” (AR 27.) In fact, Schraut told consulting psychologist Dr.
Korgeski that she stole money from at least two of her former employers. (AR 360, 362.)
It was permissible for the ALJ to consider Schraut’s past criminal activity in determining
her credibility, particularly where that activity involved stealing from her employer, an
inherently dishonest act. See Netter v. Astrue, 272 F. App’x 54, 55 (2d Cir. 2008). Along
the same lines, it was proper for the ALJ to consider Schraut’s statement to Nurse
Greenleaf that she had been “lying to people” since she was a child, and had recently lied
to her therapist. (AR 28 (citing AR 585).)
In determining Schraut’s credibility, the ALJ also correctly considered the
objective and subjective medical evidence, as well as statements by Schraut’s medical
providers which suggested symptom magnification. (AR 27–29.) For example, the ALJ
noted that treating physician’s assistant Robert Hemond stated as follows in a progress
note: although Schraut “is convinced that she is disabled because of the level of pain she
experiences[,] . . . from a spine perspective she is not disabled and can participate in daily
activities without limitation.” (AR 485.) In another progress note, Hemond stated that
Schraut exhibited five out of five Waddell signs on her physical examination, “reflecting
psychosocial overlay in her pain.” (AR 668; see also AR 616 (“back and right[-]leg pain
not concordant with . . . symptoms”). Similarly, treating physician Dr. Thomas Zweber
stated in a progress note that he “d[id] not see an obvious etiology” for Schraut’s back
and leg pain, and surmised that “there may be a secondary gain issue that is involved in
her subjective presentation.” (AR 483.) Likewise, treating nurse practitioner Kathleen
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Jackman stated in a progress note that Schraut had a negative workup with the spine
center, and that Schraut’s pain was “likely related to obesity, deconditioning[,] and lack
of stretching.” (AR 555.) Physical therapist Traci Glanz stated in an Initial Evaluation
Note that, although Schraut reported significant limitations in range of motion and
moderate limitations in strength of the lower extremities and trunk, these symptoms were
not consistent with imaging reports. (AR 536.) As discussed earlier, Glanz also noted
that, although Schraut ambulated with a cane, she did not put any weight on it. (Id.; see
also AR 711 (“continues to use a cane however does not bear any weight on [it] or
complain about back or problems with walking”).)
The ALJ also correctly considered Schraut’s conservative treatment regimen and
noncompliance with treatment recommendations, as discussed above, in support of his
credibility determination. See SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996)
(“individual’s statements may be less credible if the level or frequency of treatment is
inconsistent with the level of complaints, or if the medical reports or records show that
the individual is not following the treatment as prescribed and there are no good reasons
for this failure”).
Finally, the ALJ found that Schraut’s activity level did not support her allegations
regarding the severity of her pain and other limitations. Specifically, the record
demonstrates that, during the alleged disability period, Schraut was able to work on up to
a full-time basis, search for employment, participate in a vocational rehabilitation
program, drive a car, shop in stores, perform all personal care activities, prepare simple
meals, do some light chores, handle her finances, get up early in the morning and drive
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her boyfriend to work, regularly visit a friend, maintain a romantic relationship, play with
her children and her friend’s children for short periods of time, care for a cat, and work
on puzzle books for fifteen minutes at a time. (AR 217–21, 235–39, 353, 451, 583.) It
was proper for the ALJ to consider Schraut’s ability to do these activities in assessing the
credibility of her statements regarding the intensity, persistence, and limiting effects of
her symptoms. See Calabrese v. Astrue, 358 F. App’x 274, 278 (2d Cir. 2009) (citing 20
C.F.R. § 404.1529(c)(3)) (“in assessing the credibility of a claimant’s statements, an ALJ
must consider . . . the claimant’s daily activities”).
Conclusion
For these reasons, the Court DENIES Schraut’s motion (Doc. 10), GRANTS the
Commissioner’s motion (Doc. 14), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 1st day of November, 2013.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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