Villines v. Commissioner of Social Security
Filing
13
OPINION AND ORDER: The Court DENIES Plaintiff's 10 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 11 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 7/20/2017. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Kenya Denise Villines,
Plaintiff,
v.
Civil Action No. 2:16-cv-234-jmc
Nancy A. Berryhill, Acting
Commissioner of Social Security,1
Defendant.
OPINION AND ORDER
(Docs. 10, 11)
Plaintiff Kenya Villines 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 Supplemental Security Income (SSI).
Pending before the Court are Villines’s motion to reverse the Commissioner’s decision
(Doc. 10), and the Commissioner’s motion to affirm the same (Doc. 11). For the reasons
stated below, Villines’s motion is DENIED, and the Commissioner’s motion is
GRANTED.
1
The Court has amended the caption to reflect the current Acting Commissioner of Social
Security, who assumed office on January 20, 2017. See Fed. R. Civ. P. 25(d).
Background
Villines was 40 years old on her amended alleged disability onset date of
February 1, 2013. She dropped out of school in the tenth grade when she was pregnant
with her eldest child. (AR 375, 539.) In August 2012, she was taking GED classes twice
a week and was enrolled in a drug relapse prevention class, a parenting class, and a
computer class. (AR 527.) Villines worked as a security guard for about four years until
around 2006. (AR 49, 186, 375, 539.) Before that, she worked as a cashier at various
fast food restaurants and at a drug store. (AR 49, 186, 539.) She also worked “under the
table doing remode[]ling” until May 2010 (AR 375) and for one-to-two weeks in
December 2013, again “under the table,” “helping [a] lady clean” rooms (AR 48). In
September 2013, Villines was spending “varying amounts of time looking for a job,”
including a cleaning services job. (AR 564; see also AR 565 (“currently looking for
work”).) She was unable to return to security work because her ex-boyfriend had
obtained a restraining order against her, which she stated would be “on her record” for at
least two years. (AR 564.)
The record reveals that Villines was physically and emotionally abused, and
sexually molested by her stepfather, as a child. (AR 566; see also AR 546.) The record
further indicates that she was “brutally raped and assaulted” at a young age (AR 537
(raped at age 12); see also AR 546 (raped at age 21)), and physically abused by a
boyfriend as an adult (AR 377). At the age of 16, she left her mother’s home and was
placed in a girl’s group home. (AR 527.)
2
Villines has a history of drug abuse, and was addicted to cocaine and marijuana
for more than 12 years from her early 20s until her early 30s. (AR 538.) In August 2006,
she was arrested for selling drugs to an undercover detective; after a week in jail, she was
sent to a medical center for outpatient drug and alcohol treatment. (AR 526–27.) In June
2009, she completed two years of mandatory drug and alcohol treatment (AR 526); and
in October 2011, she reported having been “sober and drug[-]free for over three years”
(AR 376; see also AR 527 (“clean for [four] years and [eight] months”)). As of March
2013, she reported having been “clean and sober” for seven years. (AR 540.) The record
indicates, however, that she “‘fell off the wagon’ and resumed using cocaine” during the
summer and fall of 2013 (AR 754), quitting again on November 12, 2013 (AR 757).
Villines has never been married but lived with the father of her younger son for
eight years. (AR 565.) She lived with another man for four years, until he passed away
in 2007. (Id.; AR 527.) She has two sons but did not raise them because of her problems
with substance abuse. (AR 377, 526, 538.) In 2001, she lost custody of one of her sons
due to her drug and alcohol abuse. (AR 526.) In October 2011, one of her sons was 16
years old and living with her and her boyfriend, and the other was 22 years old and
incarcerated for life. (AR 375, 377, 565.) In February 2012, her younger son was
“placed outside the home due to [the Department of Health Services] being involved,”
coming home to visit Villines on the weekends. (AR 527.) In the summer of 2013,
Villines and her boyfriend separated, and she and her son were forced to leave the
apartment where the three had been living. (AR 563, 567.)
3
Due at least in part to her troubled childhood, Villines suffers from several mental
health impairments. She has anger issues and is uncomfortable around crowds or
strangers. (AR 537, 564.) She has nightmares and poor sleep; she cries easily; she feels
sad and hopeless “much of the time”; and her mood is “chronically depressed.” (AR 537;
see also AR 526.) She has a long history of depression and anxiety, and has attended
therapy sessions since September 2011. (AR 526, 529, 567 (struggles with “intermittent
bouts of depression, typically situationally related, according to her accounts” ).) Villines
also suffers from several physical impairments, including rheumatoid arthritis;
hypertension; obesity; and pain in her shoulders, back, hips, and knees.
On a typical day in September 2013 (approximately eight months into the alleged
disability period), Villines: attended appointments and ran errands, attended Narcotics
Anonymous meetings at least once weekly, regularly attended therapy sessions,
occasionally went to the library to search online for a job, worked on her resume,
socialized with friends including sometimes going out to eat, watched movies, meditated,
and cooked meals for herself and her friend. (AR 564–65.) At the September 2014
administrative hearing, Villines testified that she was able to do some chores, including
cooking light meals, washing dishes, occasionally dusting furniture, and starting the
laundry. (AR 51–52.) She stated that her son or other family members completed the
remaining chores, which she was physically unable to do. (AR 53.) She further stated
that she no longer went to the movies but she watched television and read newspapers
and magazines. (AR 59–60.)
4
In December 2012, Villines applied for SSI, alleging that, starting on June 1, 2010,
she had been unable to work due to rheumatoid arthritis, depression, paranoia,
posttraumatic stress disorder, attention deficit hyperactivity disorder, and high blood
pressure. (AR 169–78, 195.) Her application was denied initially and upon
reconsideration, and she timely requested an administrative hearing. The hearing was
conducted on September 15, 2014 by Administrative Law Judge (ALJ) Alan Sacks.
(AR 40–72.) Villines appeared and testified, and was represented by an attorney. A
vocational expert (VE) also testified at the hearing.
Villines testified at the hearing that she can stand, walk, and sit for only 30
minutes at a time, respectively, before needing to switch positions. (AR 55.) She further
testified that she has difficulty bending and crouching (id.), and has “[c]onstant pain” “all
over,” including in her hips, back, neck, and knees. (AR 56.) She also testified that she
has trouble sleeping (AR 58), and does not usually travel alone because she feels
“anxious and uneasy” around crowds (AR 60). Nonetheless, Villines stated that she gets
along with people outside of crowds (id.) and that her mood is only “a little slightly
depressive” (AR 61). Significantly, Villines testified that she would have been able to
perform a sedentary job (with some particular limitations) without missing more than two
days of work per month up until February 2013. (See AR 50 (Villines testifying that if
she had been offered a fulltime housekeeping job “early in 2013,” she “probably would
have” taken it); see also AR 62–64.) Given this testimony, on September 19, 2014,
Villines amended her alleged disability onset date to February 1, 2013. (AR 185.)
5
On October 28, 2014, the ALJ issued a decision finding that Villines was not
disabled under the Social Security Act at any time from her alleged disability onset date
through the date of the decision. (AR 23–35.) Thereafter, the Appeals Council denied
Villines’s request for review, rendering the ALJ’s decision the final decision of the
Commissioner. (AR 5–11.) Having exhausted her administrative remedies, Villines filed
the Complaint in this action on August 30, 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
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),
6
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 Sacks first determined that Villines had
not engaged in substantial gainful activity since her alleged disability onset date of
February 1, 2013. (AR 24.) At step two, the ALJ found that Villines had the following
severe impairments: arthritis, degeneration of the cervical spine, obesity, and depression.
(AR 25–26, 34.) Conversely, the ALJ found that Villines’s heart impairment,
hypertension, kidney injury, ankle injury, and joint pain were non-severe. (AR 25–26.)
At step three, the ALJ found that none of Villines’s impairments, alone or in
combination, met or medically equaled a listed impairment. (AR 26–30, 34.) Next, the
ALJ determined that Villines had the RFC to perform “light work,” as defined in 20
C.F.R. §§ 404.1567(b), 416.967(b), so long as it “involv[ed] only simple, routine tasks[;]
low stress[;] and low contacts with others.” (AR 32, 34.) Given this RFC, the ALJ found
7
that Villines was unable to perform her past relevant work as a cashier or a security
guard. (AR 33.) Finally, based on testimony from the VE, the ALJ determined that
Villines could perform other jobs existing in significant numbers in the national
economy, including the jobs of housekeeper and bakery worker. (AR 33–34, 35.) The
ALJ concluded that Villines had not been disabled since the amended alleged disability
onset date. (AR 35.)
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
8
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 factfinder.”). “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
Villines makes four principal arguments in her Motion: (1) the ALJ failed to
adequately assess the severity of Villines’s rheumatoid arthritis, anxiety, and
hypertension; (2) the ALJ did not correctly evaluate the opinions of examining medical
consultant Leonard Popowich, DO; (3) the ALJ’s RFC determination was not based on
substantial evidence and improperly relied on two Global Assessment of Functioning
(GAF) scores; and (4) the ALJ’s assessment of Villines’s credibility was not based on
substantial evidence. (See Doc. 10.) The Commissioner disagrees with each of these
arguments and claims the ALJ’s decision is “supported by substantial evidence” and
reflects the ALJ’s application of “the correct legal standards.” (Doc. 11 at 1.) As
explained below, the Court agrees with the Commissioner and thus affirms the ALJ’s
decision.
9
I.
Step-Two Severity Findings Regarding Arthritis, Hypertension, and Anxiety
Villines argues that the ALJ failed to adequately assess the severity of her
rheumatoid arthritis, hypertension, and anxiety disorder. It is the claimant’s burden to
show at step two that he or she has a “severe impairment,” meaning an impairment which
“significantly limits [the claimant’s] 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 8528, 1985 WL 56856, at *3 (1985).
The ALJ stated in his decision that Villines’s rheumatoid arthritis was a severe
impairment (AR 25–26), noting specifically that it caused Villines “at least one workrelated limitation that is more than minimal” (AR 25). (See AR 34 (listing “arthritis” as
one of Villines’s “severe impairments”).) Therefore, Villines’s argument that the ALJ
should have found her rheumatoid arthritis to be a severe impairment is mistaken.
Clearly, the ALJ found that that impairment was severe and analyzed it throughout the
sequential evaluation. (See, e.g., AR 25–26, 30, 32, 34.) Moreover, Villines’s argument
regarding rheumatoid arthritis appears to be based almost exclusively on the mere
diagnosis of this condition. (See Doc. 10 at 3–4.) It is well settled, however, 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,
10
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)).
In contrast to his finding that Villines’s arthritis was severe, the ALJ found that
Villines’s hypertension was not severe (AR 25), explaining that the record “does not
indicate any resulting symptoms [from the hypertension] that might cause any workrelated limitations that are more than minimal” (AR 26). The only facts cited by Villines
to support the claim that her hypertension was severe are that: she had high blood
pressure; her hypertension required emergency room visits and a hospital admission; and
“at one point, her hypertension caused headaches and kidney damage.” (Doc. 10 at 5.)
These facts are insufficient. Again, merely demonstrating that a condition has been
diagnosed and treated does not establish that it was a severe impairment during the
relevant period. See McConnell, 2008 WL 833968, at *2. Furthermore, the record
simply does not indicate that Villines’s hypertension significantly limited her ability to
perform basic work activities.
With respect to Villines’s anxiety, the ALJ failed to specifically state whether it
was a severe impairment at step two of the sequential analysis. This failure does not
require remand though, as the ALJ continued through step five of the analysis, explicitly
considering Villines’s anxiety and accounting for it in his RFC determination. See
Reices-Colon v. Astrue, 523 F. App’x 796, 798 (2d Cir. 2013) (finding step-two error
11
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.”). Specifically, the ALJ stated
as follows (at step three) with respect to Villines’s general psychiatric symptoms,
including anxiety:
The record does not include any psychiatric treatment notes since the alleged
onset date. . . . [It] includes evidence [of only] a few dates when [Villines]
complained of psychiatric symptoms . . . . On those [dates], [Villines]
reported symptoms including . . . anxiety . . . . These notations, however, do
not indicate any specific resulting limitations in functioning.
(AR 28.) The record supports these findings. (See, e.g., AR 525–30, 537–41, 563–68.)
For example, in March 2013, examining consultant Debra Thompson, PsyD, found that
Villines’s activities of daily living “are not impaired,” and that, “[a]lthough [Villines]
would be challenged” to perform a full-time job, “she would be able to manage the
stressors inherent in simple[,] ordinary[,] unskilled employment such as she [has done] in
the past.” (AR 539.) Thus, the Court finds no error in the ALJ’s analysis of Villines’s
anxiety.
Furthermore, as discussed in more detail below, the ALJ incorporated Villines’s
arthritis, hypertension, and anxiety into his RFC determination by limiting Villines to
“light work” involving only “simple, routine tasks”; “low stress”; and “low contact[] with
others.” (AR 34.) Therefore, the ALJ did not err in his severity findings at step two. See
Woodmancy v. Colvin, No. 5:12-CV-991 (GLS), 2013 WL 5567553, at *2 (N.D.N.Y.
12
Oct. 9, 2013) (“[A]s the disability analysis continued and the ALJ considered claimant’s
severe and non-severe impairments in her RFC determination, any error at step two is, at
most, harmless.”), aff’d, 577 F. App’x 72 (2d Cir. 2014).
II.
Analysis of Examining Consultant Dr. Popowich’s Opinions
Next, Villines argues that the ALJ did not correctly evaluate the March 13, 2013
opinions of examining consultant Dr. Popowich regarding Villines’s ability to perform
work-related physical activities. (See Doc. 10 at 6 (citing AR 549–50).) After examining
Villines on one occasion, Dr. Popowich made the following opinions: Villines’s gait was
antalgic on the left; her lower extremities exhibited a limited range of motion; she had
difficulty getting on and off the examination table; she could not walk heel-to-toe due to
bilateral ankle pain; she had lumbar tenderness and bilateral paravertebral muscle spasm;
she could lift 17 pounds but could not carry due to pain in back, knees, and ankles; she
could occasionally lift and carry ten pounds; she could sit for only one-and-a-half hours
and stand and walk for only up to one hour in an eight-hour workday; and she could
occasionally bend, kneel, stoop, crouch, balance, and/or climb. (AR 548–50.)
The ALJ stated that he “d[id] not rely” on these opinions of Dr. Popowich because
(1) they are “based . . . on a single examination,” and (2) they are inconsistent with the
record “which contains few other . . . abnormal findings and none since [Dr. Popowich’s]
examination.” (AR 31.) The Court finds no error. First, the ALJ correctly noted that
Dr. Popowich examined Villines only once. (See Doc. 10 at 6 (Villines stating that
Dr. Popowich “conducted a physical exam [of her] prior to reaching his conclusions.”
13
(emphasis added)).) This fact is significant because it means that Dr. Popowich was not a
“treating source” under the regulations and thus the ALJ was not required to analyze his
opinions under the so-called “treating physician rule.” See 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2).2 The applicable regulation provides as follows:
Generally, the longer a treating source has treated you and the more times
you have been seen by a treating source, the more weight we will give to the
source’s medical opinion. When the treating source has seen you a number
of times and long enough to have obtained a longitudinal picture of your
impairment, we will give the medical source’s medical opinion more weight
than we would give it if it were from a nontreating source.
20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). Applying this regulation, the Second
Circuit has held that treating sources who see a patient only once or twice do not have a
chance to develop an ongoing relationship with the patient and thus are generally not
considered treating physicians. Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011);
see Schisler v. Bowen, 851 F.2d 43, 46 (2d Cir. 1988) (defining a “treating physician” as
a physician “who has or had an ongoing treatment and physician-patient relationship with
2
On January 17, 2017, after the date of the ALJ’s decision, several social security regulations
regarding the evaluation of medical evidence were revised. See Revisions to Rules Regarding the
Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 2017 WL 168819 (Jan. 18, 2017). These revisions
change the way the Commissioner and the courts review medical and other evidence in SSI and DIB
cases in several significant respects. Id. (“The revisions include redefining several key terms related to
evidence, revising our rules about acceptable medical sources . . . , revising how we consider and
articulate our consideration of medical opinions and prior administrative medical findings, revising our
rules about medical consultants . . . and psychological consultants . . . , revising our rules about treating
sources, and reorganizing our evidence regulations for ease of use.”). Here, however, the Court applies
the earlier regulations that were in effect at the time the ALJ issued his decision on October 28, 2014. See
Revised Medical Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66138-01, 66178, 2016 WL
5341732 n.1 (Sept. 26, 2016) (“We expect that Federal courts will review our final decisions using the
rules that were in effect at the time we issued the decisions.”); see also Lowry v. Astrue, 474 F. App’x
801, 805 n.2 (2d Cir. 2012) (applying regulation in effect at the time of ALJ’s decision despite subsequent
amendment); Graham v. Comm’r of Soc. Sec., No. 16-CV-142 (LDH), 2017 WL 1232493, at *3
(E.D.N.Y. Mar. 31, 2017) (same).
14
the individual”). The ALJ properly afforded less weight to Dr. Popowich’s opinions
based on the fact that Dr. Popowich saw Villines on only one occasion and therefore was
not a “treating” physician.
Second, the ALJ’s consideration of whether Dr. Popowich’s opinions are
supported by and consistent with other evidence in the record (see AR 31) applies the
correct legal standard, given that “[s]upportability” and “[c]onsistency” are important
factors for ALJs to consider in determining what weight to assign to medical opinions, 20
C.F.R. §§ 404.1527(c)(3), (4); 416.927(c)(3), (4). See 20 C.F.R.§§ 404.1527(b), (c);
416.927(b), (c) (requiring ALJs to “always consider the medical opinions in [the] case
record” and to evaluate “every medical opinion” received, whether obtained from treating
or consulting sources, considering several “factors,” including but not limited to the
opinions’ supportability and consistency with the record). Moreover, substantial
evidence supports the ALJ’s finding that Dr. Popowich’s opinions are not well supported
and are inconsistent with the record. Specifically, Dr. Popowich’s opinions are
inconsistent with the unremarkable x-rays of Villines’s lumbar spine, pelvis, right elbow,
hands, and feet (AR 614–15, 736–37, 741, 768, 770, 846–52); the medical opinions of
nonexamining agency consultant Sharon Wander, MD (AR 82); and the observations in
treatment notes of examining physicians Ralph Riviello, ED (AR 614, 617), Rashid
Panahi, MD (AR 736–37), and Karthik Ranganna, MD (AR 741, 768, 770). The
treatment records simply do not support the extreme limitations outlined in
Dr. Popowich’s opinions. The ALJ accurately stated:
15
The record includes few abnormal examination findings[;] [Villines’s]
arthritis apparently is not rheumatoid in nature[;] her depression is not
particularly severe[;] her obesity is not particularly severe[;] she has no sideeffects from medication[;] she testified to the ability to perform sedentary
work through February[] 2013[;] [and] the record does not establish any
decline in her medical condition since then.
(AR 30 (citation omitted).)
Thus, the ALJ did not err in declining to rely on the opinions of examining
consultant Dr. Popowich.
III.
RFC Determination
Next, Villines claims the ALJ’s RFC determination is not based on substantial
evidence. (See Doc. 10 at 6–7.) Specifically, Villines states that the ALJ “fails to point
to any part of the record which supports his finding that she can perform work at the light
exertion level.” (Id. at 6.) “In general,” however, it is the claimant and not the ALJ who
is “responsible for providing the evidence . . . use[d] to make a finding about [his or her]
[RFC].” 20 C.F.R. § 416.945(a)(3); see 20 C.F.R. § 416.912(c) (“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).
The regulations provide that a claimant’s RFC is “the most [she] can still do
despite [her] limitations,” and that the ALJ will assess a claimant’s RFC “based on all the
relevant evidence in [the] case record.” 20 C.F.R. § 416.945(a)(1). Here, as noted above,
the ALJ determined that Villines’s RFC was for “light work involving only simple,
routine tasks[;] low stress[;] and low contacts with others.” (AR 32, 34.) The ALJ
16
explained that this determination was based on his consideration of “the entire record,”
including the opinions of nonexamining agency consultant Dr. Wander and examining
consultant Dr. Thompson, the observations of Villines’s treating sources, the objective
evidence of record, and Villines’s own statements. (AR 31; see AR 26–28, 30, 32.)
Substantial evidence supports this determination, and the Court finds no legal error.
Specifically, Dr. Wander opined in April 2013 that Villines could lift/carry ten
pounds frequently and twenty pounds occasionally (AR 82); could stand, walk, or sit
(with normal breaks) for about six hours in an eight-hour workday (id.); and was capable
of performing “simple, routine work” (AR 81). Although Dr. Wander never treated or
consulted with Villines, the regulations permit the opinions of nonexamining agency
consultants to override those of treating physicians, when the former are more consistent
with the 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)) (“[T]he regulations . . .
permit the opinions of nonexamining sources to override treating sources’ opinions
provided they are supported by evidence in the record.”); SSR 96-6p, 1996 WL 374180,
at *3 (July 2, 1996) (“In appropriate circumstances, opinions from State agency . . .
consultants . . . may be entitled to greater weight than the opinions of treating or
examining sources.”). Here, the opinions of agency consultant Dr. Warner are more
consistent with the record than those of Dr. Popowich, discussed above. For example, in
June 2013, Dr. Riviello observed that Villines’s gait was normal; her back and neck
exhibited a normal range of motion with no pain, and she demonstrated full muscle
strength and a full range of motion throughout her arms and legs. (AR 614–15.) And
17
from June 2013 through February 2014, Dr. Ranganna recorded normal findings
regarding Villines’s physical condition, including a normal gait and normal muscle
strength and tone. (AR 741, 768, 770.) In March 2014, Dr. Panahi observed that
Villines’s gait and stance were normal; her spine exhibited a full range of motion; and
she demonstrated normal muscle strength in her arms and legs. (AR 736–37.) X-rays
were also unremarkable during the relevant period. (AR 846–52.)
Regarding Villines’s mental limitations, the ALJ partially relied on the March
2013 opinions of examining consultant Dr. Thompson (see AR 32), who found, as
discussed above, that Villines’s activities of daily living were “not impaired,” and that
Villines “would be able to manage the stressors inherent in simple[,] ordinary[,] unskilled
employment such as she [has done] in the past” (AR 539). Dr. Thompson opined that
Villines would have no significant limitations in understanding, remembering, and
carrying out instructions; no significant limitations in responding to changes in a routine
work setting; only slight limitations in interacting with coworkers and supervisors; and no
more than moderate limitations in interacting with the public and responding
appropriately to work pressure. (AR 541.) It was proper for the ALJ to rely on the report
of Dr. Thompson even though she was an examining consultant rather than a treating
source. See Petrie, 412 F. App’x at 405 (“report of a consultative physician may
constitute . . . substantial evidence” to support ALJ’s decision). Moreover, nonexamining
agency consultant John Rohar, PhD, assessed limitations similar to those assessed by
Dr. Thompson, including no limitations in understanding and memory and no significant
limitations in carrying out very short and simple instructions, maintaining attention and
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concentration for extended periods, performing activities within a schedule, maintaining
regular attendance, being punctual, sustaining an ordinary routine without special
supervision, working in coordination with or proximity to others, making simple workrelated decisions, responding appropriately to criticism from supervisors, and getting
along with coworkers. (AR 84–85.) Dr. Rohar stated that Villines could perform
“simple, routine, repetitive work in a stable environment.” (AR 84.)
Villines argues that the ALJ should not have relied on two GAF scores3––a score
of 55 assigned in August 2012 and a score of 58 assigned in September 2013––in
determining her RFC. (See Doc. 10 at 7–8.) But the language of the ALJ’s decision
makes clear that the ALJ did not exclusively, or even primarily, rely on these scores, but
rather, considered them as one factor among others reflecting Villines’s mental
limitations during the relevant period. (See AR 32 (“To the extent that these scores might
be construed as opinions on ability to work, they do not support a determination of
disability.” (emphasis added)).) The ALJ accurately noted that these scores connote only
“moderate mental limitation” (id.): the DSM-IV states that a score of “51–60” indicates
“[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic
attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers and co-workers).” DSM-IV, at 32. The ALJ did not err in
considering these GAF scores as part of his consideration of the record as a whole in
3
“The GAF is a scale promulgated by the American Psychiatric Association to assist ‘in tracking
the clinical progress of individuals [with psychological problems] in global terms.’” Kohler v. Astrue,
546 F.3d 260, 262, n.1 (2d Cir. 2008) (quoting Am. Psychiatric Ass’n, Diagnostic and Statistical Manual
of Mental Disorders (“DSM-IV”), at 32 (4th ed. 2000)).
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determining Villines’s RFC. See Leonard v. Comm’r of Soc. Sec., No. 5:14-CV-1353
(GTS/WBC), 2016 WL 3511780, at *8 (N.D.N.Y. May 19, 2016) (“[T]he ALJ did not err
in mentioning Plaintiff’s GAF score as one factor [in] his overall evaluation of the
medical opinion evidence in the record.”), report and recommendation adopted sub nom.
Leonard v. Colvin, No. 5:14-CV-1353, 2016 WL 3512219 (N.D.N.Y. June 22, 2016).
Furthermore, the ALJ properly determined Villines’s RFC in conjunction with
assessing her credibility, as discussed below. See Poppa v. Astrue, 569 F.3d 1167,
1170–71 (10th Cir. 2009). As the Tenth Circuit explained:
The regulations require that an ALJ’s RFC be based on the entire case record,
including the objective medical findings and the credibility of the claimant’s
subjective complaints. Since the purpose of the credibility evaluation is to
help the ALJ assess a claimant’s RFC, the ALJ’s credibility and RFC
determinations are inherently intertwined.
Id. (citing 20 C.F.R. §§ 416.929, 416.945); see also Sitsler v. Astrue, 410 F. App’x 112,
120 (10th Cir. 2011) (“A proper determination of the weight to be given claimant’s
subjective claims of pain and other symptoms underlies a proper finding regarding his
RFC.”).
IV.
Credibility Assessment
The ALJ made a lengthy assessment of Villines’s credibility in his decision, listing
“certain important points” that support his finding that she was “less than fully credible.”
(AR 30–31.) For example, the ALJ accurately noted that Villines testified at the
administrative hearing that she last worked for more than a two-week period in 2006 or
2007 (AR 48–49), but the record reveals that she told a consulting psychologist that she
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worked “under the table doing remodel[]ing” up until May 2010 (AR 375). And the ALJ
correctly observed that, although Villines testified that she last participated in a drug and
alcohol program in 2009 and 2010 (AR 62), the record indicates that she told a treating
source that she was “very active in [such a] program”––on a “daily” basis––in January
2014 (AR 749). Also, the ALJ accurately stated that Villines testified that she last
engaged in substance abuse, involving cocaine and marijuana, in 2009 and that she did
not recall using cocaine in the year prior to the administrative hearing (September 2013
through September 2014) (AR 61–62, 66); but treatment notes state that she “resumed
using cocaine” during the summer and fall of 2013 before entering “detox/rehab” in
November 2013 (AR 754). The ALJ reasonably explained that “discrepancies” like these
“cast doubt on all [Villines’s] statements” and led him to credit Villines’s testimony
“only to the extent that the medical evidence supports it.” (AR 31.)
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) (internal quotation marks omitted), and the court
“must show special deference” to credibility determinations made by the ALJ, “who had
the opportunity to observe the witnesses’ demeanor” while testifying, Yellow Freight
Sys., Inc. v. Reich, 38 F.3d 76, 81 (2d Cir. 1994). If the ALJ’s credibility assessment is
supported by substantial evidence, the court must uphold it, even if substantial evidence
supporting the claimant’s position also exists. Aponte, 728 F.2d at 591; see Alston, 904
F.2d at 126 (“Where there is substantial evidence to support either position, the
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determination is one to be made by the factfinder.”); 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 Court rejects Villines’s credibility argument, finding that the ALJ’s
assessment of Villines’s credibility is supported by substantial evidence. As noted above,
Villines herself made several statements regarding her work history and drug abuse at the
administrative hearing that are inconsistent with observations made or statements
recorded by her treating providers. Moreover, the record does not support Villines’s
testimony about the severity of her physical and mental impairments. For example,
although Villines alleged at the administrative hearing that she was in “[c]onstant pain”
“all over” (AR 56), a 2013 consultant report indicates that Villines reported having pain
only “in her back and her ankle” (AR 538) and not to the extent that it affected her
activities of daily living or ability to do household chores like cooking, cleaning, and the
laundry (AR 539). Additionally, although Villines claims that her anxiety disorder was
severely limiting (Doc. 10 at 7–8), preventing her from traveling alone or being in crowds
(AR 60), a 2012 consultant report states that she “keeps herself busy with positive
activities,” including “attend[ing] workshops, classes[,] and therapy” (AR 526), and she
“is proactive [and] advocates for her own needs and seeks out appropriate treatments for
herself” (AR 525). Furthermore, as the ALJ noted, Villines was able to go shopping, see
friends twice a week, travel on public transportation, and go to the movies during the
alleged disability period. (AR 29 (citing AR 525–33, 537–44).)
22
Although Villines attempts to explain her testimony and other statements in a light
more favorable to her claim (see Doc. 10 at 9–11), the ALJ was not obliged to accept her
characterization of the record without question. See Genier v. Astrue, 606 F.3d 46, 49
(2d Cir. 2010) (“[ALJ] is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the claimant’s
testimony in light of the other evidence in the record.”). It is the task of the ALJ, and not
the court, to resolve evidentiary conflicts and appraise the credibility of witnesses,
including the claimant. See Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638,
642 (2d Cir. 1983). The Court finds no error with respect to the ALJ’s assessment of
Villines’s credibility.
Conclusion
For these reasons, the Court DENIES Villines’s motion (Doc. 10), GRANTS the
Commissioner’s motion (Doc. 11), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 20th day of July 2017.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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