Barca v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The Court DENIES Plaintiff's 14 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 21 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 8/8/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Michael Barca,
Plaintiff,
v.

Civil Action No. 2:16-cv-187

Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 14, 21)
Plaintiff Michael Barca 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 (Commissioner) denying his February 2013 applications for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). Pending before the
Court are Barca’s motion to reverse the Commissioner’s decision (Doc. 14), and the
Commissioner’s motion to affirm the same (Doc. 21). For the reasons stated below, the
Court DENIES Barca’s motion, and GRANTS the Commissioner’s motion.
Background
In January 2014, this Court issued an order denying a prior DIB application of
Barca’s.1 See Barca v. Comm’r of Soc. Sec., Civil Action No. 2:13-CV-68, 2014 WL
257858, at *1 (D. Vt. Jan. 23, 2014). Therein, the Court summarized the facts as follows

1

Barca has filed “multiple prior [disability] applications,” as discussed in a footnote to the Administrative
Law Judge’s decision in this case. (AR 14 n.1.)

After graduating from high school, [Barca] served in the Marines for
approximately four years. Thereafter, he was an emergency medical
technician for approximately eight years. Since 1996, he has held many jobs,
including a road flagger, a security officer, a sales associate, a cook, a
teacher’s aide, a construction worker, and a taxi driver. He claims he has
been unable to hold most of these jobs for more than a few weeks.
As a child, Barca was physically abused by his father. He was married in
1994, and he and his wife had three children and adopted a fourth. The
couple had problems with their eldest son, and Barca told one of his medical
providers that when this son was 14, he sexually molested the couple’s then
four-year-old son. In July 2008, Barca was fired from his job as a security
officer, which he had held for almost five years, due to his theft from a client.
In January 2009, Barca was charged with arson of the family residence.
Around the same time, Barca’s marriage ended in divorce, largely due to
Barca’s economic and vocational instability and his anger issues. In 2011,
feeling despondent from his divorce and estrangement from his children,
Barca attempted suicide by overdosing on his medications. At that time, he
was living with his brother-in-law and his family, including nine children. In
June 2012, Barca was living alone in an apartment subsidized by a Veteran’s
Affairs . . . housing program. He saw his children infrequently but was well
connected with a local church and close with his sisters.
Despite having gastric bypass surgery in 1998, Barca is morbidly obese. He
suffers from depression, posttraumatic stress syndrome . . . , and cellulitis.
He has nightmares, which prevent him from sleeping through the night. His
cellulitis causes swelling in his legs if he sits or stands for extended periods,
and his psychological problems result in problems concentrating and
handling stress.
Id. at *1 (citations omitted). In a June 2011 Intake Evaluation, it was noted that Barca
has a “no[-]contact order” that prevents him from being able to spend time with his
children (AR 633), and that he reported approximately 30 jobs in the prior few years,
each of which ended with him quitting or being fired, and approximately 50 jobs since
Barca left the Marines in 1981 (AR 633–34).

2

Barca was 54 years old on his amended alleged disability onset date of January 19,
2013. In February 2013, he filed the DIB and SSI applications currently under review,
alleging that he has been unable to work due to “[m]anic depression acute,” posttraumatic
stress disorder (PTSD), “extreme suicidal anxiety,” lymphedema,2 cellulitis,3 and high
blood pressure. (AR 494.) Barca’s applications were denied initially and upon
reconsideration, and he timely requested an administrative hearing. On December 11,
2014, a hearing was conducted by Administrative Law Judge (ALJ) Matthew Levin.
(AR 38–63.) Barca appeared and testified, and was represented by an attorney. A
vocational expert (VE) also testified at the hearing. (AR 55–62.) Barca testified that, as
a result of his lower extremity condition (cellulitis, lymphedema, a combination of the
two, or something else), he is unable to stand or sit for lengthy periods (more than 15–20
minutes) or his legs will begin to swell, becoming very painful. (AR 49–50, 503.) In a
Function Report, Barca explained that, when his legs swell, he suffers “excruciating”
pain, making it difficult to walk. (AR 531.) Barca further testified that he experiences
swelling in his legs on a daily basis and has to elevate them for eight hours before the
swelling goes down. (AR 49.) Barca explained that, due to his lower extremity pain and
swelling, he has difficulty performing activities of daily living including showering,

2

“Lymphedema” is “[s]welling . . . as a result of obstruction of lymphatic vessels or lymph
nodes and the accumulation of large amounts of lymph in the affected region,” Stedman’s Medical
Dictionary 516910 (2014), generally occurring in one or both arms and legs.
3

“Cellulitis” is “[i]nflammation of subcutaneous, loose connective tissue,” Stedman’s Medical
Dictionary 159930 (2014), resulting in infection which may lead to swelling, redness, or pain.

3

dressing, and completing household chores. (AR 52–53.) His pain also results in him
being able to sleep for only about three to four hours each night. (AR 532.)
Despite his extensive testimony and reporting about his lower extremity condition,
Barca stated at the administrative hearing that, of all his impairments, his “anxiety
disorder” is the one that most prevents him from working. (AR 47.) Barca testified that,
due to his anxiety and “severe depression,” he cannot work with people and he feels
suicidal three or four times each month. (AR 47–48.) In a Function Report, Barca
further stated that his PTSD limits his ability to concentrate and retain even simple
information. (AR 531.)
On February 4, 2015, the ALJ issued a decision finding that Barca was not
disabled under the Social Security Act at any time from his amended alleged disability
onset date through the date of the decision. (AR 14–28.) Thereafter, the Appeals
Council denied Barca’s request for review (AR 1–6), rendering the ALJ’s decision the
final decision of the Commissioner. Having exhausted his administrative remedies,
Barca filed the Complaint in this case on July 6, 2016. (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

4

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).
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]”).

5

Employing this sequential analysis, ALJ Levin first determined that, although
Barca had engaged in some work activity after the amended alleged disability onset date,
he had not engaged in substantial gainful activity (SGA). (AR 17.) At step two, the ALJ
found that Barca had the following severe impairments: obesity, lymphedema/cellulitis
(lower extremities), depression, an anxiety-related disorder, and personality disorder
traits. (Id.) Conversely, the ALJ found that the following impairments were not severe,
due to a lack of evidence: hearing and vision loss, hypertension, and loss of a portion of
right index finger. (AR 18.) The ALJ noted, however, that he considered these
impairments in assessing Barca’s RFC. (AR 19.) At step three, the ALJ found that none
of Barca’s impairments, alone or in combination, met or medically equaled a listed
impairment. (AR 19–21.)
Next, the ALJ determined that Barca had the RFC to perform “light work,” as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except as follows:
[Barca] must be able to sit and elevate his legs for 3–5 minutes an hour. He
is able to perform simple, unskilled work in a low[-]stress environment,
which is defined as requiring little to no change in the work setting and little
to no need for the use of judgment. He is able to maintain attention and
concentration for two-hour increments throughout the course of an 8-hour
workday and to have brief and superficial social interaction with the general
public and co[]workers and routine collaboration with supervisors.
(AR 21.) Given this RFC, and relying on the VE’s testimony from the administrative
hearing, the ALJ found that Barca was capable of performing his past relevant work as a
“flagger.” (AR 27.) The ALJ concluded that Barca had not been under a disability from

6

his amended alleged disability onset date of January 19, 2013, 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
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

7

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).
Analysis
Barca makes the following claims: (1) the ALJ erred at step two in finding that
Barca’s hypertension was not a severe impairment; (2) the ALJ made several errors in his
RFC determination, including failing to consider all of Barca’s impairments in
combination; (3) the ALJ erred in his analysis of the medical opinions; (4) the ALJ erred
in his consideration of Barca’s ability to handle stress; and (5) the ALJ erred at step four
in finding that Barca was able to perform his past relevant work as a flagger. (See Doc.
14.) The Commissioner disagrees with each of these arguments, and contends that the
ALJ’s decision is supported by substantial evidence and reflects the ALJ’s application of
the correct legal standards. (See Doc. 21.) As explained below, the Court agrees with the
Commissioner and thus affirms the ALJ’s decision.
I.

ALJ’s Step-Two Analysis of Hypertension
The Court finds no merit to Barca’s claim that the ALJ erred in finding Barca’s

hypertension to be non-severe at step two of the sequential analysis. (See Doc. 14 at 6.)
It is the claimant’s burden to show at step two that he or she has a “severe impairment,”

8

meaning an impairment which “significantly limits [his] physical or mental ability to do
basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c); see Bowen v. Yuckert, 482
U.S. 137, 146 n.5 (1987) (“It is not unreasonable to require the claimant, who is in a
better position to provide information about his own medical condition, to do so.”). An
impairment is “not severe” when medical evidence establishes “only a slight abnormality
. . . which would have no more than a minimal effect on [the claimant’s] ability to work.”
SSR 85-28, 1985 WL 56856, at *3 (1985).
The ALJ explained in his decision that Barca’s hypertension was not a severe
impairment because “the record fails to reveal evidence of anything more than some
minimal resultant functional limitation related to the[] impairment[].” (AR 19.)
Although Barca cites to medical records indicating that he was diagnosed with
hypertension at various times throughout the alleged disability period (see, e.g., Doc. 14
at 8), it is well settled that the diagnosis of a condition “says nothing about [its] severity,”
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988), and is not sufficient to prove
disability, Williams v. Bowen, 859 F.2d 255, 259 (2d Cir. 1988). See McConnell v.
Astrue, No. 6:03-CV-0521, 2008 WL 833968, at *2 (N.D.N.Y. Mar. 27, 2008) (“The
mere presence of a disease or impairment, or establishing that a person has been
diagnosed or treated for a disease or impairment is not, itself, sufficient to deem a
condition severe.” (internal quotation marks omitted)).
Moreover, as the ALJ noted in his decision, the record clearly demonstrates that
Barca was noncompliant with treatment recommendations regarding his hypertension.

9

(See AR 23 (citing AR 1462).) For example, in a September 2014 treatment note,
Dr. Devine stated: “This was to be a follow[-]up [appointment regarding Barca’s]
malignant hypertension but again [Barca] did not take his meds!!!” (AR 1462.)
Dr. Devine continued: “[Barca] [a]gain remains much more focused on his court case
than on his health and I am not able to get him to take his blood pressure seriously.” (Id.;
see also AR 1468 (“continues to literally laugh . . . off [his hypertension]”).)4 The
regulations provide that if a claimant fails to follow prescribed treatment without a good
reason, the Commissioner will not find the claimant disabled. 20 C.F.R. § 404.1530(b);
see also 20 C.F.R. § 404.1529(c)(3) (“treatments or other methods” used to alleviate a
claimant’s pain are “an important indicator of the intensity and persistence” of the
claimant’s pain); Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (affirming
denial of benefits where claimant failed to heed doctor’s diet recommendation which
would have helped hypertension and headaches). Barca has offered no good reason for
his failure to comply with prescribed treatment regarding his hypertension.
Furthermore, even if the ALJ erred in failing to find Barca’s hypertension severe,
remand is not required on this ground, because the ALJ continued through step four of
the sequential analysis, explicitly considering Barca’s hypertension in subsequent steps.
See Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (finding step-two error

4

The record reflects that Barca was also noncompliant with treatment recommendations
regarding his obesity, which is a risk factor for hypertension. For example, in a March 2013 treatment
note, Dr. William Arban recorded that Barca appeared to be “in blithe denial that he has a problem [with
his weight],” and that Barca stated “he is unable to eat a healthy . . . diet [and] exercise . . . due to a living
situation that he says makes him unable to prepare healthy meals at home.” (AR 734.)

10

harmless because ALJ considered impairments during subsequent steps); Stanton v.
Astrue, 370 F. App’x 231, 233 n.1 (2d Cir. 2010) (same); Pompa v. Comm’r of Soc. Sec.,
73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found that Pompa had a severe
impairment at step two . . . , the question of whether the ALJ characterized any other
alleged impairment as severe . . . is of little consequence.”).
II.

ALJ’s RFC Determination
The Court also finds no merit to Barca’s claim that the ALJ made several errors in

his RFC determination. Barca asserts that the ALJ erred in omitting agency consultant
Howard Goldberg, PhD’s one-to-three-step task limitation, failing to account for Barca’s
lower extremity condition, and failing to consider Barca’s impairments in combination.
(See Doc. 14 at 10.) Barca’s argument appears to misconstrue the ALJ’s role in
determining a claimant’s RFC. (See id. at 5 (finding fault with the ALJ’s RFC
determination in part because it did not track that of the agency consultants, instead
“elevat[ing] one physical condition . . . from non-severe to severe, add[ing] one mental
condition . . .[,] and downgrad[ing] another . . . .”).) The ALJ’s RFC determination need
not “perfectly correspond with any of the opinions of medical sources cited in his
decision”; rather, the determination must be the result of the ALJ’s weighing of “all of
the evidence available to make an RFC finding that [is] consistent with the record as a
whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013).
A claimant’s RFC is “the most [he] can still do despite [his] limitations.” 20
C.F.R. § 416.945(a)(1). Under the applicable regulation, the ALJ must assess the

11

claimant’s RFC “based on all of the relevant medical and other evidence.” Id. at (a)(3).
“In general,” it is the claimant who is “responsible for providing the evidence . . . use[d]
to make a finding about [the claimant’s] [RFC].” Id.; see 20 C.F.R. § 416.912(a)(1)
(“You must inform us about or submit all evidence known to you that relates to whether
or not you are . . . disabled.”); Butts, 388 F.3d at 383 (claimant bears burden of proving
case at steps one through four). Here, as noted above, the ALJ determined that Barca’s
RFC was for “light work” but with several additional limitations, including a need to sit
and elevate his legs for three to five minutes each hour, and a requirement that he do only
simple, unskilled work in a low-stress setting, with only brief and superficial social
interaction with the general public and coworkers. (AR 21.) The ALJ explained that this
RFC is “supported by opinion evidence offered by the State Disability Determination
Service medical and psychological consultants, whose opinions are found to be consistent
with the evidence of record as a whole.” (AR 27.) Substantial evidence supports this
determination, and the Court finds no legal error, as discussed below.
A.

Dr. Goldberg’s One- to Three-Step-Task Limitation

First, Barca claims the ALJ erred in omitting agency consultant Dr. Goldberg’s
one- to three-step-task limitation in his RFC determination. (See Doc. 14 at 4.) But the
ALJ adequately accounted for this limitation by restricting Barca to performing only
“simple, unskilled work.” (AR 21.) Work that is described as “simple” and “unskilled,”
by definition, could not require more than three steps to perform. See
https://www.collinsdictionary.com/us/dictionary/english (last visited 7/12/17) (defining

12

“simple” as “not involved or complicated; easy to understand or do” and “unskilled” as
“requiring or using no special skill or training”); see also SSR 85-15, 1985 WL 56857, at
*4 (1985) (“The basic mental demands of competitive, remunerative, unskilled work
include the abilities (on a sustained basis) to understand, carry out, and remember simple
instructions.”).
B.

Lower Extremity Condition

Second, Barca contends the ALJ erred in failing to account for Barca’s lower
extremity condition in his RFC determination. (See Doc. 14 at 2–3, 5.) But the ALJ
included in his RFC determination a limitation that Barca “must be able to sit and elevate
his legs for 3–5 minutes an hour” (AR 21), as opined by agency consultant Ann Fingar,
MD (AR 230; see AR 25 (ALJ giving “great weight” to Dr. Fingar’s opinions)), and the
record does not support a more severe limitation. The ALJ explained his RFC finding
regarding Barca’s lower extremity condition in his decision (AR 22), accurately noting
that, although Barca had a history of treatment for recurrent episodes of cellulitis and
edema/swelling in his legs, treating physician Dr. Richard Baughman stated in a January
2013 treatment note that Barca was “under excellent management for his lymphedema[,]
which is responding to compression,” and that Barca was “avoiding cellulitis” (AR 963).
The ALJ further noted, correctly, that Barca was “less than fully compliant with
treatment prescribed to address [his lower extremity condition].” (AR 22.)
An April 2014 physical therapy note supports the findings regarding Barca’s lower
extremity condition, stating that, although Barca had a NormaTec device to assist with

13

his leg swelling, he “has not been using it”; and that Barca “[a]ppears to have the tools
necessary to address his swelling concerns, but is having difficulty following through
with a plan.” (AR 1407.) The note further states that, “within a few minutes” of
elevating his leg and performing “ankle pumps,” Barca noted improvement in his
symptoms. (Id.) Finally, the treatment note states that Barca was “working 5–6[-]hour[]
shifts as a cook” and needed to increase those hours in order to “provide increased child
support.” (Id.) The ALJ questioned Barca about this work at the administrative hearing,
wondering how he could remain on his feet for such a long time during the alleged
disability period, and Barca responded: “I just did it. I know if I complained about the
pain, they would cut my hours, and at the time, I was being pressured with my child
support judges[, who basically threatened me with jail in order to make me work].” (AR
53; see also AR 23, 25.)
C.

Combination of Impairments

Third, Barca claims the ALJ erred in “fail[ing] to consider the various connected
physical impairments, namely, obesity, lymphedema/cellulitis/edema, hypertension[,] and
visual loss in combination.” (Doc. 14 at 7.) Barca states that the ALJ improperly “failed
to acknowledge that all of these conditions are interrelated and, as such, required a more
restrictive RFC than he adopted.” (Id.) A review of the ALJ’s decision demonstrates,
however, that the ALJ considered each of these conditions; and the decision explicitly
states that the ALJ “consider[ed] all of [Barca’s] . . . medically determinable physical
impairments upon assessing his [RFC],” including even those found to be non-severe.

14

(AR 19.) Regarding Barca’s vision problems, the ALJ’s RFC determination does not
account for them because neither Barca nor his treating providers attributed any
functional limitations to them, as the ALJ explained in his decision. (See id. (citing AR
1009) (Dr. Devine checking box indicating that Barca had no limitation in his ability to
see).) Regarding Barca’s obesity, lymphedema/cellulitis/edema, and hypertension; the
ALJ particularly noted Dr. Devine’s findings in treatment notes that Barca’s obesity was
“the primary driver of his dependent edema” (AR 23 (citing AR 1462)), and that Barca
continued to gain weight “despite the fact that his obesity is noted to be the direct cause
of many of his health issues” (AR 23 (citing AR 1468)). Even if the ALJ had not
explicitly considered Barca’s impairments in combination, where, as here, the ALJ’s
decision identifies each of the claimant’s impairments, the decision is “not vulnerable
to . . . reversal” on the ground that the ALJ failed to consider all of the claimed
impairments in combination. Tinsley v. Barnhart, Civil No. 3:01CV977(DJS)(TPS),
2005 WL 1413233, at *6 (D. Conn. June 16, 2005); see Forrest v. Astrue, Civil Action
No. 2:10–CV–20, 2011 WL 759401, at *11–12 (D. Vt. Feb. 24, 2011).
III.

ALJ’s Analysis of the Medical Opinions
Next, Barca argues that the ALJ improperly rejected the medical opinions of

treating primary care physician Katherine Devine, MD, treating psychiatrist Scott
Rebhun, MD, and treating therapist Tony Graveline, MA, LADC, QMHP. (See Doc. 14
at 10–11.) As discussed below, the argument lacks merit.

15

The ALJ was required to analyze the opinions of treating physicians Dr. Devine
and Dr. Rebhun under the treating physician rule, which states that a treating physician’s
opinion on the nature and severity of a claimant’s condition is entitled to “controlling
weight” if it is “well[]supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.” 20 C.F.R. § 404.1527(c)(2); see Schisler v. Sullivan, 3 F.3d 563, 567–69 (2d
Cir. 1993). When controlling weight is not given to a treating physician’s opinions
(because they are not “well[]supported” by other medical evidence or are “inconsistent”
with other substantial evidence), the ALJ must consider the following factors in
determining how much weight, if any, to give the opinions: (1) the length of the treatment
relationship and the frequency of examination; (2) the nature and extent of the treatment
relationship; (3) the evidence that supports the treating physician’s report; (4) how
consistent the treating physician’s opinions are with the record as a whole; (5) the
specialization of the physician in contrast to the condition being treated; and (6) any other
factors which may be significant. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also
Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Shaw, 221 F.3d at 134.
Treating physician opinions may be rejected based on the ALJ’s proper
consideration of any of these factors, and the ALJ need not expressly recite each factor in
his decision. Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (“We require no such
slavish recitation of each and every factor where the ALJ’s reasoning and adherence to
the regulation are clear.”) (citing Halloran, 362 F.3d at 31–32). Nonetheless, ALJs must

16

“always give good reasons” for the weight they assign to a treating source’s opinions,
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), and failure to do so is ground for remand,
Halloran, 362 F.3d at 33 (“We do not hesitate to remand when the Commissioner has not
provided ‘good reasons’ for the weight given to a treating physician[’]s opinion[s] and
we will continue remanding when we encounter opinions from ALJ[]s that do not
comprehensively set forth reasons for the weight assigned to a treating physician’s
opinion[s].”). Examples of “good reasons” to discount the opinions of a treating
physician include the following: the opinions are inconsistent with the bulk of the other
substantial evidence, such as the opinions of other medical sources, see Williams v.
Comm’r of Soc. Sec., 236 F. App’x 641, 643–44 (2d Cir. 2007); Veino v. Barnhart, 312
F.3d 578, 588 (2d Cir. 2002); the opinions are internally inconsistent, see Micheli v.
Astrue, 501 F. App’x 26, 28 (2d Cir. 2012); the physician’s relationship to the claimant is
“limited and remote,” see Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011); and the
treating source lacked underlying expertise and gave only brief, conclusory opinions
unsupported by clinical findings or other evidence, see 20 C.F.R. § 404.1527(c)(3), (5).
Unlike the opinions of Drs. Devine and Rebun, the ALJ was not required to
analyze the opinions of treating therapist Graveline under the treating physician rule,
because therapists are defined in the regulations as “other sources,” 20 C.F.R. §
404.1513(d),5 rather than “acceptable medical sources” like licensed physicians and
5

Effective March 27, 2017, 20 C.F.R. § 404.1513 has been amended, as have other social
security regulations regarding the evaluation of medical evidence. Nonetheless, because Barca’s social
security application was filed before the new regulations went into effect, the Court reviews the ALJ’s
decision under the earlier regulations.

17

psychologists, id. at § 404.1513(a). Although these “other source” opinions may be used
“to show the severity of [the claimant’s] impairment(s) and how it affects [the claimant’s]
ability to work,” 20 C.F.R. § 404.1513(d)(1), ALJs are not required to evaluate them in
the same manner as required under the treating physician rule, 20 C.F.R. §
404.1527(a)(2). See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006); Duran v.
Comm’r of Soc. Sec., 296 F. App’x 134, 136 (2d Cir. 2008) (finding no error in ALJ
decision to disregard assessment of “medical records physician” because it was not from
an acceptable medical source and did not include clinical findings). Still, ALJs are
required to consider and analyze these opinions “on key issues such as impairment
severity and functional effects, along with the other relevant evidence in the file,” SSR
06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006), and they must use the same factors for
evaluating these opinions as are used to evaluate opinions from “acceptable medical
sources,” id. at *4 (citing 20 C.F.R. §§ 404.1527(d), 416.927(d)), including the length of
the treatment relationship, the frequency of evaluation, the degree to which the opinion is
supported by other evidence, and the opinion’s consistency with the record as a whole.
A.

Dr. Devine

Barca argues that the ALJ should have considered the applicable criteria in
weighing the value of Dr. Devine’s opinions. (See Doc. 14 at 11.) And the ALJ clearly
did so. Specifically, the ALJ explained that, despite Dr. Devine’s status as Barca’s
“primary care provider,” he gave “[l]imited weight” to Dr. Devine’s opinions because
they are not supported by “any specific medically documented objective findings” or by

18

Dr. Devine’s own treatment notes, and because they are not consistent with the record as
a whole. (AR 25–26.) As discussed above, supportability and consistency with the
record are appropriate factors to consider in assessing the value of a treating physician’s
opinions. See 20 C.F.R. §§ 404.1527(c)(2)(ii)(3)–(4), 416.927(c)(2)(ii)(3)–(4).
Moreover, the ALJ’s findings are supported by substantial evidence. As the ALJ noted
(AR 25), Dr. Devine indicated in June and July 2013 treatment notes that she was unsure
of the cause of Barca’s edema, and an echocardiogram did not show any cardiac reason
for the impairment (AR 1059, 1075). The ALJ also noted that September 2014 treatment
notes from Dr. Devine revealed that, after participating in physical therapy for his
lymphedema, Barca was experiencing “significant improvement” in his lower extremity
edema. (AR 1469; see AR 26.)
The ALJ also considered Dr. Devine’s treatment notes which indicated that Barca
was noncompliant with treatment recommendations. The ALJ stated as follows:
I find a lack of evidence to support a finding that . . . if [Barca] remained
treatment compliant, [he] would have postural or standing limitations as
assessed by Dr. Devine. Rather, the record reveals . . . that, when treatment
compliant and able to elevate his legs for just a few minutes, [Barca’s] edema
. . . improve[d] with no evidence of any additional findings noted upon
examination to support the functional limitations assessed.
(AR 26 (citing AR 1407).) The treatment note cited in support of this finding indicates
that Barca had a book on diabetes but had not read it, had a compression therapy device
but had not used it, and was “having difficulty following through with a [treatment]
plan.” (AR 1407.) Another of Dr. Devine’s treatment notes states that Barca was

19

“again” not taking his prescribed medication, would not stay at Dr. Devine’s office to
have an EKG or lab work done, was not taking his blood pressure seriously, and was
more focused on his “court case” than on his health.6 (AR 1462.) Barca appears to argue
that the ALJ was not allowed to consider Barca’s lack of compliance with treatment
recommendations in conjunction with his analysis of Dr. Devine’s medical opinions.
(See Doc. 14. at 11.) But there is no support for this argument, and in fact, the law is to
the contrary, as discussed above. See SSR 82-59, 1982 WL 31384, at *2 (1982)
(“continued failure to follow prescribed treatment without good reason can result in
denial or termination of benefits”); Dumas, 712 F.2d at 1553 (“Of course, a remediable
impairment is not disabling.”); Russell v. Barnhart, 111 F. App’x 26, 27 (1st Cir. 2004)
(per curiam) (“A claimant’s failure to follow prescribed medical treatment contradicts
subjective complaints of disabling conditions and supports an ALJ’s decision to deny
benefits.”); Hussnatter v. Astrue, No. CV-09-3261 (SJF), 2010 WL 3394088, at *22
(E.D.N.Y. Aug. 20, 2010) (“in order to be entitled to [disability] benefits . . . , the
claimant is required to follow all prescribed treatment if such treatment can restore his or
her ability to work”).

6

A treatment note from Dr. John Lippmann similarly indicates Barca’s lack of compliance
with treatment recommendations, indicating that Barca failed to take his prescribed potassium
tablets, appeared to be “in blithe denial that he has a problem [with his weight],” and “says he is
unable to eat a healthy . . . diet . . . due to a living situation that . . . makes him unable to prepare
healthy meals at home.” (AR 998; see also AR 734, AR 1468 (“very poor compliance with
remembering meds”).) Another treatment note indicates that Barca himself admitted he did not
comply with treatment recommendations. (See AR 1001 (“Patient admits to medication noncompliance.”).)

20

B.

Dr. Rebhun

Barca next asserts that the ALJ erred in failing to address Dr. Rebhun’s opinion
that Barca would be absent from work for more than four days each month. (See Doc. 14
at 12 (citing AR 1264).) The argument is unpersuasive, as the ALJ was not required to
expressly discuss every aspect of Dr. Rebhun’s opinions. See Bonilla v. Berryhill, CASE
NO. 8:15-CV-2929-T-MAP, 2017 WL 744709, at *4 (M.D. Fla. Feb. 27, 2017) (“The
ALJ is not required to refer to every aspect of Dr. Stanley’s opinion, provided it is
clear . . . that the ALJ considered Plaintiff’s impairments as a whole.” (citing Adams v.
Comm’r of Soc. Sec., 586 F. App’x 531, 533 (11th Cir. 2014))); Cannon v. Colvin, Case
No. 1:15-CV-01095-SMS, 2016 WL 8730716, at *6 (E.D. Cal. Oct. 14, 2016) (“That the
ALJ did not discuss every assessment made by Dr. Palmer was not error, especially
where no evidence shows they are material to the disability determination . . . .” (citing
Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003))); see also Brault
v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d Cir. 2012) (“an ALJ is not required to discuss
every piece of evidence submitted[, and] [a]n ALJ’s failure to cite specific evidence does
not indicate that such evidence was not considered”) (internal quotation marks and
citation omitted); Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983) (although courts
may not accept “an unreasoned rejection of all the medical evidence in a claimant’s
favor,” the Commissioner need not “reconcile explicitly every conflicting shred of
medical testimony”).

21

Moreover, the ALJ properly considered the relevant regulatory factors in
analyzing Dr. Rebhun’s opinions, and the ALJ’s analysis is supported by substantial
evidence. Acknowledging Dr. Rebhun’s status as Barca’s treating psychiatrist, the ALJ
stated that he gave “[l]ittle weight” to Dr. Rebhun’s opinions because they are “internally
inconsistent as well as inconsistent with the evidence of record as a whole.” (AR 26.)
The ALJ explained that the Global Assessment of Functioning (GAF) score assigned to
Barca by Dr. Rebhun is more moderate than the marked limitations Dr. Rebhun opined
Barca had with respect to performing at a consistent pace and completing a normal
workday or workweek without interruption. (Id. (citing AR 1260–64).) The ALJ further
explained that, despite Dr. Rebhun’s opinion that Barca would not be able to work a full
week, the Doctor failed to indicate how long Barca could work and failed to identify any
medically documented findings to support that limitation. (AR 26.) There was no error
in the ALJ’s analysis, and substantial evidence supports the ALJ’s factual findings.
C.

Therapist Graveline

Barca also contends the ALJ erred in failing to address therapist Graveline’s
opinion that Barca would be absent from work for more than four days each month. (See
Doc. 14 at 12 (citing AR 1269).) But again, the ALJ was not required to discuss every
aspect of Graveline’s opinions. Further, the ALJ did not err in his analysis of these
opinions and the ALJ’s analysis is supported by substantial evidence.
As noted above, given that Graveline is not a physician or other acceptable
medical source under the regulations, his opinions “do not demand the same deference as

22

those of a treating physician.” Genier v. Astrue, 298 F. App’x 105, 108 (2d Cir. 2008).
The ALJ was still required to consider the relevant factors in analyzing Graveline’s
opinions, however, see SSR 06-03p, 2006 WL 2329939, at *3–4; and the ALJ did just
that, acknowledging that Graveline was Barca’s treating therapist and giving “limited
weight” to his opinions because they are “inconsistent with the limited findings noted
upon examination throughout the period under review.” (AR 26–27.) The ALJ also
found that, similar to the opinions of Dr. Rebhun, Graveline’s opinions “fail[] to note
how long [Barca] could work and/or to identify specific medically documented findings
that would support his assessed degree of functional limitation.” (Id. at 27.) The ALJ
further found that, again similar to Dr. Rebhun’s opinions, Graveline’s assessment of
Barca’s GAF indicated less severe limitations than Graveline’s conclusion that Barca
could not sustain fulltime work activity. (Id. at 26–27 (citing AR 1265).) There was no
error in this analysis, and substantial evidence supports the ALJ’s factual findings.
IV.

ALJ’s Consideration of Barca’s Ability to Handle Stress
Barca next contends that the ALJ did not properly consider Barca’s inability to

handle stress. (See Doc. 14 at 12–13.) Barca explains that, despite asking no questions
about stress at the administrative hearing, the ALJ included a stress limitation in his RFC
determination. (Id. at 12.) Citing to SSR 85-15, Barca argues that the ALJ’s RFC
determination regarding Barca’s ability to handle stressful work environments “was
neither sufficiently thorough nor individualized in assessing what causes [Barca] to feel
stressed.” (Doc. 22 at 3.) Barca further asserts that it was improper for the ALJ to define

23

low-stress work as work that “‘require[s] little to no change in the work setting and little
to no need for the use of judgment’” without first determining what caused Barca to be
stressed. (Id. at 4.) Barca states: “The ALJ’s error was in failing to inquire [at the
administrative hearing] into what triggers Mr. Barca’s stress.” (Id.) Without this
information, Barca claims, the ALJ could not make a “rational determination of whether
a particular work setting will be tolerable.” (Id.)
The Court is unaware of any law to support Barca’s claims, and the record
indicates that the ALJ did in fact consider Barca’s stress limitations. In particular, the
ALJ’s decision states that Barca alleges he “is unable to handle stress or any changes in
his routine” (AR 22); and the decision cites to pages from two of Barca’s Function
Reports wherein Barca reported that he cannot handle stress or changes in routine (id.
(citing AR 509)). The ALJ accounted for Barca’s stress limitations in his RFC
determination, finding that Barca could only work in a “low[-]stress environment, which
is defined as requiring little to no change in the work setting and little to no need for the
use of judgment.” (AR 21.) This finding is in accord with the opinions of agency
consultant Dr. Goldberg, to which the ALJ afforded “great weight.” (AR 26 (citing AR
220–34).) Dr. Goldberg opined that Barca was “limited from high[-]stress tasks
bec[ause] of low stress tolerance” and “limited from high[-]stress interactions with [the]
public and coworkers due to immature interpersonal personality traits.” (AR 231.)
Substantial evidence supports the ALJ’s findings regarding Barca’s ability to work in
stressful settings, and Barca has demonstrated no legal error in the ALJ’s determination

24

that Barca was able to perform work in a “low[-]stress environment,” meaning an
environment that “require[es] little to no change in the work setting and little to no need
for the use of judgment.” (AR 21.)
Barca cites to SSR 85-15 in support of his claim that the ALJ did not properly
account for his stress limitations. That SSR states: “The mentally impaired may cease to
function effectively when facing such demands as getting to work regularly, having their
performance supervised, and remaining in the workplace for a full day. . . . Thus, the
mentally impaired may have difficulty meeting the requirements of even so-called ‘lowstress’ jobs.” 1985 WL 56857, at *6 (1985). But of course, each case is taken on its own
merits, id. at *5 (“Determining whether [mentally impaired] individuals will be able to
adapt to the demands or ‘stress’ of the workplace is often extremely difficult” and
requires a thorough “evaluation on an individualized basis.”), and here, the evidence
indicates that Barca was able to handle a limited amount of stress (see, e.g., AR 943
(driving to Burlington to observe son’s wrestling match), AR 1055 (possibly volunteering
to help elderly), AR 1166 (has an okay relationship with landlord and neighbors, receives
emotional support from friends and church members, continues to take steps to find a
job), AR 1407 (working up to six-hour shifts as a cook), AR 1531 (calling coworkers to
keep in contact)). Furthermore, SSR 85-15, 1985 WL 56857, at *3, recommends that
ALJs obtain the opinion of a VE to determine the effect that a claimant’s limited ability
to handle stress has on his ability to perform particular jobs, and the ALJ did so here.
(See AR 58–60.) Specifically, the ALJ asked the VE at the administrative hearing if

25

Barca could do any of his past work if he was limited to working in a “low[-]stress
environment,” defining low stress as “requiring little to no change in the work setting,
little to no need for the use of judgment” (AR 58–59); and the VE replied that he would
be able to do the job of flagger (AR 60). When the ALJ posed a hypothetical involving a
claimant who, unlike Barca, “would be unable to deal with any work[-]related stress,” the
VE stated that that “would eliminate any jobs in the national economy.” (Id.)
V.

ALJ’s Step-Four Finding of Ability to Do past Relevant Work as a Flagger
Finally, Barca claims the ALJ erred in finding that Barca could perform his past

relevant work as a flagger, given that the job requires more standing than Barca could do
and more stress than Barca could handle. (See Doc. 14 at 13–15; Doc. 22 at 3–7.) Barca
claims the VE’s testimony that a flagger can elevate his feet for three to five minutes
every hour is “nonsense,” and in fact, “a flagger is required to stand at all times that he or
she is on duty.” (Doc. 22 at 5.) In support of this claim, Barca cites to his own testimony
at the administrative hearing based on his experience as a flagger, and to the Dictionary
of Occupational Titles (DOT) and the Program Operations Manual System (POMS). (Id.;
see AR 46 (Barca testifying that when he worked as a flagger, he stood “all day long for
whenever, whatever they needed you” and he was on his feet “[t]he whole time”).)
Moreover, citing to the U.S. Department of Labor’s definition of the flagger job, Barca
contends that it is not “low stress,” but rather, requires an ability to control personal
emotions, exercise sound judgment, and take action in dangerous situations. (Doc. 22

26

at 6.) Barca claims he could not handle the job because, as Dr. Goldberg opined, he
needed to avoid high-stress interactions. (Id. at 7; see AR 231.)
It is Barca’s burden to prove that he was incapable of performing his past relevant
work, and he has failed to demonstrate that his past work as a flagger involved more
standing or more stress than he could handle. See Zokaitis v. Astrue, Civil Action No.
1:10-CV-30, 2010 WL 5140576, at *10-11 (D. Vt. Oct. 28, 2010) (at step four, plaintiff
failed to demonstrate that she could not perform her past work as a cashier because she
failed to establish that the job was performed in a high-stress context). The evidence
attached to Barca’s Statement of Facts, including the DOT’s and other agencies’
descriptions of the flagger job, does not persuade the Court otherwise. (See Doc. 14-1–
14-4, Exs. A–C.) Moreover, the ALJ was entitled to rely on the VE’s testimony, in
response to hypothetical questions matching Barca’s RFC, to determine whether Barca
could do his past relevant work. See 20 C.F.R. § 416.960(b)(2) (“We may use the
services of vocational experts or vocational specialists, or other resources, such as the
‘Dictionary of Occupational Titles’ and its companion volumes and supplements,
published by the Department of Labor, to obtain evidence we need to help us determine
whether you can do your past relevant work, given your [RFC].”); Hennes v. Comm’r of
Soc. Sec. Admin., 130 F. App’x 343, 346 (11th Cir. 2005) (“The ALJ . . . did not err in
considering the testimony of the VE in deciding whether Hennes could perform her past
relevant work.”).

27

Barca appears to contend that the VE’s testimony is inconsistent with the DOT’s
description of the flagger job. (See Doc. 14 at 14; Doc. 22 at 5–6.) SSR 00-4p requires
that, if there is an “apparent unresolved conflict” between the VE’s testimony and the
DOT, the ALJ must inquire further and obtain a “reasonable explanation” for the conflict.
2000 WL 1898704, at *2 (Dec. 4, 2000); see Overman v. Astrue, 546 F.3d 456, 462–63
(7th Cir. 2008). Under this SSR, a “conflict” exists between the testimony of a VE and
the DOT when the two disagree in categorizing and describing the requirements of the
job as performed in the national economy. See Jasinski v. Barnhart, 341 F.3d 182,
184–85 (2d Cir. 2003). “Many specific jobs differ from those jobs as they are generally
performed [and thus as they are described in the DOT], and the [VE] may identify those
unique aspects without contradicting the [DOT].” Id. at 185; see Schmitt v. Astrue, No.
5:11-CV-0796 (LEK/ATB), 2012 WL 4853067, at *3 (N.D.N.Y. Oct. 11, 2012) (“[T]he
DOT need not mention every characteristic of claimants’ limitations, as it is ‘not
comprehensive, but provides only occupational information on jobs as they have been
found to occur, but they may not coincide in every respect with the content of jobs as
performed in particular establishments or at certain localities.’” (quoting Johnson v.
Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)).
Here, there does not appear to be a conflict between the VE’s testimony and the
DOT with respect to the flagger job. See Martin v. Comm’r of Soc. Sec., No. 5:06-CV720 (GLS/DEP), 2008 WL 4793717, at *12 (N.D.N.Y. Oct. 30, 2008) (“Perceiving no
conflict between the DOT and the [VE’s] testimony regarding available work,” the court

28

rejected plaintiff’s argument that there was an inconsistency.). Regarding stress, the
DOT description of the flagger job does not indicate that an ability to handle stressful
situations is required, stating merely that the job requires an ability to “[a]pply
commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and to “[d]eal with problems involving a few concrete variables in or from
standardized situations.” (Doc. 14-2 at 1.) Additionally, the DOT description states that
the flagger job requires only basic communication tasks, such as discussing traffic
routing with a supervisor, directing movement of traffic, providing warnings to
coworkers, informing drivers of detours, and recording license numbers of traffic control
violators for the police. (Id.) These tasks do not exceed the stress limitations stated in
the ALJ’s RFC determination and posed to the VE in a hypothetical at the hearing. (See
AR 58 (hypothetical limiting Barca to “low stress” jobs, meaning “requiring little to no
change in the work setting, and little to no need for the use of judgment”).)
With respect to standing, the DOT description of the flagger job states that the job
requires the ability to do “[l]ight [w]ork” (Doc. 14-2 at 1), which generally requires the
ability to “stand and walk for up to 6 hours a day.” Mancuso v. Astrue, 361 F. App’x
176, 178 (2d Cir. 2010) (citing 20 C.F.R. § 404.1567(b)); see also Poupore v. Astrue, 566
F.3d 303, 305 (2d Cir. 2009) (“The full range of light work requires intermittently
standing or walking for a total of approximately 6 hours of an 8-hour workday, with
sitting occurring intermittently during the remaining time.”) (emphasis added). The VE’s
testimony that the flagger job could be performed by a hypothetical claimant who was

29

required to “sit and elevate their legs for approximately three to five minutes per hour”
(AR 58), does not conflict with this description of the job. Moreover, the VE explained
that, even if Barca was required to “take three to five minutes an hour to be off task” (AR
59) or to “put his feet up” (AR 61), he could do the flagger job, because “a person usually
is allowed 10 percent off task” and “[w]hat they do in that 10 percent of the time is up to
them” (id.). Barca’s counsel did not object to this testimony, but rather, offered a new
hypothetical with a different limitation––“be[ing] off task up to a third of the day”––
which the VE found would preclude all work. (AR 61.) But that hypothetical was not
adopted by the ALJ, as it was not supported by substantial evidence, and thus the VE’s
testimony in response to it is irrelevant. Calabrese v. Astrue, 358 F. App’x 274, 276 (2d
Cir. 2009) (“An ALJ may rely on a [VE’s] testimony regarding a hypothetical as long as
the facts of the hypothetical are based on substantial evidence, and accurately reflect the
limitations and capabilities of the claimant involved.” (citation omitted)).
Importantly, Barca’s step-four argument regarding the ALJ’s finding that he was
able to perform his past relevant work as a flagger is tied to the ALJ’s assessment of
Barca’s credibility, which Barca does not contest and to which the Court defers, finding it
to be supported by substantial evidence. See Reynolds v. Colvin, 570 F. App’x 45, 49 (2d
Cir. 2014) (“[W]e will defer to [the agency’s credibility] determinations as long as they
are supported by substantial evidence.”). The ALJ found that Barca’s statements
concerning the intensity, persistence, and limiting effects of his symptoms were “not
entirely credible” (AR 22), based on evidence that Barca was able to work six-hour shifts

30

as a pizza cook, perform personal care activities on his own, do some housework, manage
his own finances, drive to and attend his son’s wrestling matches, attend church regularly,
maintain ongoing relationships with family members and coworkers, consider
volunteering to help the elderly, pursue a job search, and get along with his landlord and
neighbors (AR 20–25; see AR 50, 53, 504–07, 532–34, 943, 1055, 1166, 1531, 1573).
The ALJ also considered treatment notes indicating that Barca’s symptoms improved
when he complied with treatment recommendations. (AR 24; see AR 733 (“cellulitis
healed in legs,” “[n]o edema”), AR 963 (lymphedema “under excellent management” and
“avoiding cellulitis”), AR 964 (“doing considerably better”), 1011 (depression “in partial
remission for several months”), 1167 (ultrasounds of legs showing “very good arterial
blood flow”), 1407 (leg symptoms improved “within a few minutes” after elevated leg
and performed ankle pumps), 1469 (“significant improvement” with lymphedema),
1531 (therapy “continues to be quite helpful”), 1532 (“doing considerably better” with
depression).) Thus, the ALJ justifiably did not include in his RFC determination Barca’s
claims that he could handle no stress at all, and did not accept Barca’s testimony that the
flagger job would require him to stand at all times with no opportunity to take a break to
rest his feet.
Conclusion
For these reasons, the Court DENIES Barca’s motion (Doc. 14), GRANTS the
Commissioner’s motion (Doc. 21), and AFFIRMS the decision of the Commissioner.
Judgment to be entered in favor of the Commissioner.

31

Dated at Burlington, in the District of Vermont, this 8th day of August, 2017.

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

32