STEARNS, District Judge.
Nancy Colon seeks review of a final decision of the Commissioner of the Social Security Administration (SSA) adopting the determination of Administrative Law Judge (ALJ) Matthew Levin that she is not disabled under the terms of the implementing regulations of the Social Security Act (Act). See 20 C.F.R. § 404.1520(f).
Colon filed for disability insurance benefits (DIB) and supplemental security income (SSI) on October 29, 2008. The SSA
Colon was born in 1960 in Puerto Rico. She was 48-years-old when she initially filed for benefits. Colon was raised by her maternal grandmother and her mother. She completed high school in Puerto Rico. Although Colon was very close to her grandmother, she suffered abuse at the hands of her mother and later, her husband. She is currently divorced and lives independently in Revere, Massachusetts. She has two adult sons who no longer live at home.
Between 1998 and 2008, Colon was employed more or less regularly as a stocker, a bed maker, a food assembler, and a cleaner. On April 28, 2008, she was laid off from her most recent job as a stocker for a department store when it went out of business. Colon has not been employed since.
Colon spends most of her time at home. She watches television, prepares meals for herself, and does household chores. She shops for necessities once a month and uses public transportation. Colon states that she is troubled by persistent back pain. More significantly, she has a history of depression, which was exacerbated by the death of her maternal grandmother in 2008. As a result of her depression, Colon claims that she cannot concentrate, has difficulty sleeping, and at times has very little energy. She also experiences crying spells and suffers occasional memory lapses.
Beginning in June of 2007, Colon complained of lumbosacral pain to her physicians at Massachusetts General Hospital (MGH). She visited MGH numerous times in 2007 and 2008 seeking treatment for her back problems, seeing different doctors each time.
In April of 2008, Colon presented to Dr. Amy R. Stagg at MGH. Colon stated that she had been experiencing pain for the past two months and had recently taken a new job that involved the moving of heavy boxes.
Colon's mental health symptoms did not surface until sometime after she began presenting at MGH for treatment of problems with her back. In September of 2008, Dr. Gomez, Colon's primary care physician, noted depressive symptoms. He referred her to MGH's Mental Health Department. Because of an apparent lack of vacancies in MGH counseling facilities, Colon did not begin receiving mental health treatment until early 2009.
Throughout the first half of 2009, Colon was examined by a number of mental health professionals. She paid monthly visits to MGH, first with Dr. Gomez and later with Dr. Victor Soria, a psychiatrist. Colon also attended individual and group counseling sessions for approximately three months beginning in January of 2009. On January 5, 2009, Colon was examined by Dr. Jasper Lawson. Two Psychiatric Review Technique evaluations were also completed on January 31, 2009, and June 1, 2009, in conjunction with Colon's initial application for SSA benefits and her application for reconsideration, respectively.
The various examinations showed Colon to be severely clinically depressed, a condition exacerbated by the relatively recent death of her maternal grandmother. Colon reported hearing her grandmother's voice calling to her at night. She also exhibited vegetative signs, including insomnia, anhedonia, tearfulness, low energy, psychomotor retardation, and a sense of hopelessness. Estela Perez, a licensed clinical social worker, noted that Colon's cognitive functioning was striking for negative thoughts. Between January and April of 2009, Colon's Global Assessment of Functioning (GAF) scores ranged from 50 to 57, with more than half of her scores totaling an exact 50.
Colon was prescribed several medications for depression, including paroxetine, clonazepam, mirtazapin, naproxen, and citalopram. Although Colon complied with the psychopharmacological regime prescribed by her doctors, her symptoms were not fully controlled.
In following the mandated five-step sequential process,
Based on Colon's age, education, work experience, and RFC, and the answer of the vocational expert to a hypothetical question incorporating her limitations, the ALJ determined that Colon was able to perform past relevant work as a food assembler and bed maker, jobs that are available in the national economy. As a result, the ALJ concluded that Colon was not disabled between the alleged onset date, April 28, 2008, and the date of his decision, June 25, 2010.
Judicial review is limited to determining whether the findings of the Commissioner are supported by substantial evidence. See 42 U.S.C. § 405(g); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir.1996). The findings of the Commissioner will be upheld "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981). "[The] question [is] not which side [the court] believe[s] is right, but whether [the ALJ] had substantial evidentiary grounds for a reasonable decision...." Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.1998). However, the Commissioner's findings "are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
The Act defines "disability" as the "inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The Act further provides that
42 U.S.C. § 423(d)(2)(A).
Colon first contends that the ALJ failed to properly evaluate her subjective complaints of pain under Avery v. Sec'y of
If a claimant's allegations of pain are not wholly substantiated by objective medical evidence, an ALJ should consider the following: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness and side effects of any medication taken to alleviate the pain or other symptoms; and (5) any other factors relating to claimant's functional limitations and restrictions attributable to pain. Avery, 797 F.2d at 22; 20 C.F.R. §§ 404.1529 and 416.929(c)(3)(i-vii).
The ALJ's opinion hews exactly to the Avery two-step process. At the first step, the ALJ found that Colon suffers from medically determinable impairments that could reasonably give rise to her complaints of pain. At the second step, however, the ALJ found Colon's subjective complaints to be only marginally credible and only to the extent that they were not inconsistent with the "objective medical evidence, as well as the findings of the State agency medical consultant, and the ultimate findings of the Vocational Expert." R. at 12.
With respect to his credibility findings, the ALJ first focused on Colon's description of her daily activities, including personal shopping, doing housework, and preparing meals. He noted that since the alleged onset date, she has cared for her grandson and managed personal finances. The ALJ also acknowledged Colon's physical and, more significantly, her mental complaints, noting that she "indicated that she has trouble with her memory and cannot concentrate ... [and] experienced the thought of suicide once, a while ago." R. at 12. He recounted Colon's professed symptoms of anhedonia, crying spells, feelings of hopelessness, and psychomotor agitation. He listed Colon's several prescription medications and noted that her symptoms have persisted despite medication and therapy.
The ALJ then went on to specify the evidence that he had relied upon in deciding not to wholly credit Colon's testimony. See Da Rosa v. Sec'y of Health & Human Servs., 803 F.2d 24, 26 (1st Cir.1986) (the ALJ "must make specific findings as to the relevant evidence he considered in determining to disbelieve the [claimant]"). With respect to Colon's back symptoms, the ALJ relied on the reports from Colon's doctors, none of whom found her pain to be as severe as she described it or noted any major functional limitation on her part. The ALJ also gave weight to the fact that Colon had not sought a State Agency medical assessment regarding physical impairment in connection with her benefits applications.
With respect to Colon's mental impairment, the ALJ relied on a June 1, 2009 medical consultant assessment performed by Dr. Michael Maliszewski, the State examiner. After reviewing Colon's medical records, Dr. Maliszewski opined that Colon was not markedly limited by her mental health symptoms. His assessment indicated that Colon had moderate difficulty maintaining concentration, persistence and social functioning, but that she possessed sufficiently intact attention to recall and
Despite Colon's objections, an ALJ's credibility determination is conclusive so long as he has considered the claimant's subjective complaints and explained his reasons for rejecting them. Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d 192, 195 (1st Cir.1987) ("[T]he credibility determination of the ALJ ... is entitled to deference, especially when supported by specific findings."). The specific findings set out in the ALJ's decision provide ample support for his credibility determination. In addition, evidence in the record, although not expressly cited by the ALJ, further corroborates his finding. For example, Ms. Perez noted that Colon seemed motivated to improve herself, in fact showed signs of improvement, and interacted well with others in group counseling. Reports from Colon's doctors also found her consistently coherent, cooperative, and oriented despite her depressive symptoms. Even more telling, Colon told both Dr. Soria and Ms. Perez that she was actively looking for a job in 2008 and 2009. She has also been collecting unemployment benefits for which she is required to certify that she is able to work. See Wimberly v. Labor & Indus. Relations Comm'n of Missouri, 479 U.S. 511, 515, 107 S.Ct. 821, 93 L.Ed.2d 909 (1987); see also Mass. Gen. Laws ch. 151A, § 24(b).
Colon next claims that the ALJ erred because his RFC determination was not supported by substantial evidence. Specifically, Colon appears to contend that the ALJ should have adopted as true the hypothetical, posed by her counsel at the hearing, that Colon could only concentrate for one-hour increments throughout an eight-hour workday. Colon, however, has offered no convincing proof of such a limitation. Arocho v. Sec'y of Health & Human Servs., 670 F.2d 374, 375 (1st Cir. 1982). Nor was the ALJ bound to accept the factual premise of counsel's hypothetical where it was contradicted by the opinion of a medical professional.
Colon finally argues that the ALJ's RFC finding is contrary to the diagnosis of Dr. Soria, who found Colon severely functionally impaired by her depression. The ALJ was not, however, required to accept Dr. Soria's analysis when it conflicted with other medical evidence in the record supporting a finding of lesser impairment. Rodriguez, 647 F.2d at 222 ("[T]he resolution of conflicts in the evidence ... is for [the ALJ], not for the doctors or for the courts.").
For the foregoing reasons, Colon's motion to reverse the decision of the Commissioner is DENIED. The Commissioner's cross-motion for an order of affirmance is ALLOWED. The Clerk will enter judgment accordingly and close the case.
SO ORDERED.
