Escobar v. Astrue

Filing 26

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER denying 11 Plaintiff's Motion for Judgment and granting 16 Defendant's Motion for Order Affirming Decision of Commissioner. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NICOLE LYNN ESCOBAR,

)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting )
Commissioner of the Social Security
Administration,
Defendant.

CIVIL ACTION
NO. 13-10186-JGD

)
)
)
)

MEMORANDUM OF DECISION AND
ORDER ON CROSS-MOTIONS REGARDING
DENIAL OF SOCIAL SECURITY BENEFITS
March 20, 2014
DEIN, U.S.M.J.
I. INTRODUCTION
The plaintiff, Nicole Lynn Escobar (“Escobar”), has brought this action pursuant
to sections 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. §§ 405(g) and
1383(c)(3), in order to challenge the final decision of the Commissioner of the Social
Security Administration (the “Commissioner”) denying her claim for Social Security
Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”) benefits. The
matter is presently before the court on the “Plaintiff’s Motion for Judgment” (Docket
No. 11), by which the plaintiff is seeking an order reversing the Commissioner’s decision
and entering judgment in her favor, or in the alternative, remanding the matter to the
Social Security Administration for further administrative proceedings. It is also before

the court on the “Defendant’s Motion to Affirm the Commissioner’s Decision” (Docket
No. 16), by which the Commissioner is seeking an order affirming her decision to deny
Escobar’s claims for benefits. At issue is whether the Administrative Law Judge (“ALJ”),
in reaching her decision that Escobar was not disabled, erred by failing to conclude that
the plaintiff has an impairment or combination of impairments that meets or medically
equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the
Social Security regulations, and by failing to properly evaluate the credibility of
Escobar’s subjective complaints of pain and other symptoms. Also at issue is whether the
ALJ committed reversible error by failing to consider the severity of the plaintiff’s
impairments in combination, by failing to include all of Escobar’s limitations in the
hypothetical question that she posed to the vocational expert during the administrative
hearing, and by finding that Escobar was not disabled under the social security
regulations. For all the reasons described below, this court finds that the ALJ acted
appropriately and that her decision was supported by substantial evidence in the record.
Accordingly, the plaintiff’s motion for judgment is DENIED, and the Commissioner’s
motion to affirm is ALLOWED.

-2-

II. STATEMENT OF FACTS1
Escobar was born on March 20, 1982, and was 29 years old at the time of her
hearing before the ALJ. (Tr. 36-37, 130). She has a high school education and has been
employed in a number of capacities, including but not limited to, as a counter clerk at a
donut shop, a group sales coordinator at a restaurant, a dishwasher/bus girl at a restaurant,
and a cashier at various retail establishments. (Tr. 39-46, 156). Escobar is currently
married and has three school age children. (Tr. 37, 53-54). Although her mother
presently has custody of the children due to issues involving the plaintiff’s former
boyfriend, Escobar has visitation rights and is able to see them weekly. (Tr. 53-55). She
claims that none of her physical or mental impairments would render her incapable of
caring for the children if she were to recover custody of them in the future. (Tr. 55).
According to Escobar, she left her last job in the fall of 2008 due to family
problems, difficulties with some of her co-workers, transportation issues and problems
stemming from a heart condition known as hypertrophic cardiomyopathy. (See Tr. 41-42,
240-41). She claims that she has been disabled from working since that time as a result
of her cardiomyopathy, hearing loss in both ears, a sleep disorder, asthma, and a number
of mental health conditions, including bipolar disorder, post-traumatic stress disorder
(“PTSD”), depression and anxiety. (Tr. 35-36, 155). At issue in this case is whether the
ALJ’s decision to reject Escobar’s claims as to the severity of her conditions, and her

1

References to pages in the transcript of the record proceedings shall be cited as “Tr.
__.” The ALJ’s decision shall be cited as “Dec.” and can be found beginning at Tr. 14.

-3-

conclusion that Escobar was not disabled from working during the time period from
October 30, 2008 through the date of her decision on July 14, 2011, was supported by
substantial evidence.
Procedural History
Escobar filed applications for SSI and SSDI benefits on August 11, 2009, claiming
that she had been unable to work since October 30, 20082 due to symptoms stemming
from her heart condition and mental health impairments. (Tr. 130-43, 151, 155). Her
applications were denied initially in December 2009, and upon reconsideration in May
2010. (Tr. 72-87).
The plaintiff subsequently requested and was granted a hearing before an ALJ,
which took place by video teleconference on June 24, 2011. (Tr. 30-71, 88-98, 100-10).
Escobar, who was represented by counsel, appeared and testified at the hearing. (Tr. 3163, 65-67). Significantly, during her testimony, Escobar had an opportunity to describe
the pain and other symptoms that she experiences as a result of her physical and mental
impairments, the treatment she has received for her symptoms, and the extent to which
that treatment has helped to relieve her symptoms. (Tr. 47-53, 59-63). Additionally, the
ALJ asked Escobar to discuss any side effects that she experiences as a result of her

2

Although the summaries of Escobar’s applications for SSI and SSDI indicate that the
plaintiff was claiming an inability to work since March 30, 2009, other evidence in the record,
including the ALJ’s decision, specify an alleged onset date of October 30, 2008. (Compare Tr.
130 and 137 with Tr. 14 and 155). Because the ALJ considered October 30, 2008 to be the
alleged date of onset of Escobar’s disability, and analyzed her claims on that basis, this court will
do likewise.

-4-

medications, and to describe the impact that her physical and mental impairments have
had on her ability to carry out day-to-day activities. (Tr. 53, 57-60). Accordingly,
Escobar described how her physical and mental impairments have affected the quality of
her sleep, as well as her ability to interact with her children, exercise, shop for groceries,
and perform other activities of daily living. (Tr. 50, 54, 58-60). As described below, this
court finds that the ALJ properly considered these matters in assessing the credibility of
Escobar’s claims of disabling pain and functional limitations.
During the hearing, the ALJ also elicited testimony from a vocational expert
(“VE”), who described the plaintiff’s vocational background based on her past work
experience and responded to hypothetical questions designed to determine whether jobs
exist in the national economy for an individual with the same age, educational background, past work experience, and residual functional capacity (“RFC”) as the plaintiff.
(Tr. 63-70). Escobar contends that the hypothetical question, which the ALJ posed to the
VE, did not accurately reflect all of the plaintiff’s functional limitations, and that
therefore, the ALJ’s reliance on the VE’s response to that question was not based on
substantial evidence. For the reasons detailed below, however, this court concludes that
the ALJ’s question was appropriate, and that the ALJ was entitled to rely on the VE’s
response to support her finding that Escobar was not disabled.
Specifically, during the hearing, the ALJ asked the VE to consider a hypothetical
individual with the same age, education and work experience as the plaintiff who retains
the physical ability to perform light work, except that the individual would only be able
-5-

to stand and walk up to four hours per day; could occasionally climb, balance, stoop,
kneel, crouch, and crawl; could never climb ropes, ladders or scaffolds; and would need
to avoid concentrated exposure to extreme cold, noise, vibration, fumes, odors, dust,
gases, and hazards such as machinery and heights. (Tr. 67-68). Additionally, with
respect to the hypothetical individual’s mental limitations, the ALJ stated that the
individual “is limited to unskilled work with simple tasks, only occasional changes in the
work [setting], only occasional judgment or decision making involving no interaction
with the general public, and only occasional superficial interaction with co-workers.”
(Tr. 68). The VE testified that such an individual would not be able to perform any of
Escobar’s past work, but that a claimant with those limitations would be able to perform
general, unskilled factory work such as assembly inspecting, testing and hand packaging.
(Id.). He further provided specific examples of such work, including the jobs of
electronics inspector, computer assembler, gauger, and eyeglass polisher. (Tr. 68-69).
According to the VE, there are about 4,000 such jobs in Massachusetts and about 200,000
such jobs in the national economy. (Id.).
After the VE responded to the ALJ’s hypothetical question, the plaintiff’s counsel
was given an opportunity to examine the VE. (Tr. 70). Plaintiff’s counsel asked the VE
whether jobs would be available for a hypothetical claimant who had the same limitations
as those described by the ALJ, but also had to call in sick once a month or come in late
once a week due to her medical condition. (Id.). The VE testified that based on his
professional experience, an employer likely would be willing to retain an individual who
-6-

called in sick or came in late six times over the course of a year, but that there would be
no jobs available for the hypothetical claimant described by the plaintiff’s attorney. (Id.).

On July 14, 2011, the ALJ issued a decision denying Escobar’s applications for
benefits. (Dec. 24; Tr. 24). Subsequently, the plaintiff filed a request for review of the
ALJ’s decision by the Social Security Appeals Council, and on December 12, 2012, the
Appeals Council denied the request, thereby making the ALJ’s decision the final decision
of the Commissioner for purposes of review. (Tr. 1-3, 7). Therefore, the plaintiff has
exhausted all of her administrative remedies, and the case is ripe for review pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3).
The ALJ’s Decision
The ALJ concluded that from October 30, 2008 through the date of her decision on
July 14, 2011, Escobar had not been “under a disability, as defined in the Social Security
Act,” which defines “disability” as “the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment or
combination of impairments that can be expected to result in death or that has lasted or
can be expected to last for a continuous period of not less than 12 months.” (Dec. 1 and
Finding #11; Tr. 14, 24). See also 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). There is
no dispute that the ALJ, in reaching her decision, applied the five-step sequential evaluation required by 20 C.F.R. §§ 404.1520 and 416.920. The procedure resulted in the

-7-

following analysis, which is detailed in the ALJ’s “Findings of Fact and Conclusions of
Law.” (See Dec. 3-11; Tr. 16-24).
The first inquiry in the five-step process is whether the claimant is “engaged in
substantial gainful work activity[.]” Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). If
so, the claimant is automatically considered not disabled and the application for benefits
is denied. See id. In the instant case, the ALJ determined that Escobar had not engaged
in such activity since October 30, 2008, the alleged onset date of her disability. (Dec.
Finding #2; Tr. 16). Therefore, the ALJ proceeded to the next step in the sequential
analysis.
The second inquiry is whether the claimant has a “severe impairment,” meaning an
“impairment or combination of impairments 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). If not, the claimant is considered not disabled and the application for
benefits is denied. See Seavey, 276 F.3d at 5. Here, the ALJ concluded that Escobar
suffered from a variety of severe impairments, including cardiomyopathy, obesity,
asthma, depression, anxiety, and hearing loss. (Dec. Finding #3; Tr. 16).
In connection with her finding at step two, the ALJ provided a detailed description
of the objective medical evidence relating to Escobar’s physical and mental health
conditions. (Dec. 4-6; Tr. 17-19). In particular, she discussed the findings of Escobar’s
treating physicians regarding the plaintiff’s heart condition, including the results of septal
myectomy surgery, which was performed on Escobar’s heart in April 2010 to address the
-8-

plaintiff’s complaints of symptoms from her cardiomyopathy. (Dec. 4-5; Tr. 17-18; see
also Tr. 329-30, 450-52). The ALJ also described the findings of Escobar’s mental health
providers, who evaluated the plaintiff and provided her with counseling and psychopharmaceutical treatment during the time period from July 2009 through April 2011. (Dec.
4-5; Tr. 17-18). In addition, the ALJ reviewed the results of audio testing relating to the
plaintiff’s hearing loss, and described certain testimony that Escobar had given at the
hearing, including testimony pertaining to her weight and to certain of her physical and
mental conditions. (Dec. 6; Tr. 19). Because the ALJ determined that Escobar suffered
from a number of severe impairments, she proceeded to step three in the sequential
analysis.
The third inquiry is whether the claimant has an impairment equivalent to a
specific list of impairments contained in Appendix 1 of the Social Security regulations, in
which case the claimant would automatically be found disabled. See Seavey, 276 F.3d at
5; 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At this step, the ALJ concluded
that Escobar’s impairments, either alone or in combination, did not meet or medically
equal any of the listed impairments. (Dec. Finding #4; Tr. 19).
Details Regarding the ALJ’s Step Three Analysis
In reaching her conclusion at step three, the ALJ reviewed the entire record,
including the testimony and other evidence presented by the plaintiff. (Dec. 6; Tr. 19).
She determined, based on her review, that “[n]one of the claimant’s impairments rise to
the level of severity needed to meet or equal a listing level.” (Id.). Moreover, in her
-9-

written decision, the ALJ specifically addressed whether Escobar’s mental impairments,
considered singly or in combination, met or medically equaled the criteria of Listing
12.04 for affective disorders or Listing 12.06 for anxiety-related disorders. (Id.). The
ALJ concluded that the plaintiff’s mental impairments did not meet or medically equal
either of these Listings. (Dec. 6-7; Tr. 19-20).
In support of this finding, the ALJ considered whether the so-called “paragraph B”
criteria of Listings 12.04 and 12.06 were satisfied. (Dec. 6; Tr. 19). The ALJ recognized
that in order to meet the paragraph B criteria of either Listing,
the [plaintiff’s] mental impairments must result in at least two of the
following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes
of decompensation, each of extended duration. A marked limitation
means more than moderate but less than extreme. Repeated episodes
of decompensation, each of extended duration, means three episodes
within 1 year, or an average of once every 4 months, each lasting for
at least 2 weeks.
(Id.). She then determined that Escobar’s mental impairments did not satisfy the applicable criteria because the plaintiff had experienced no extended episodes of decompensation, and because the plaintiff had only mild restrictions in her ability to carry out daily
activities, moderate difficulties in social functioning, and moderate difficulties with
regard to concentration, persistence or pace. (Dec. 6-7; Tr. 19-20). The parties dispute
whether these findings were supported by substantial evidence.
The ALJ also considered whether the plaintiff’s mental impairments satisfied the
so-called “paragraph C” criteria of Listing 12.04 and/or 12.06. (Dec. 7; Tr. 20). Because
-10-

the ALJ found that Escobar was capable of traveling independently in the community,
taking public transportation, and keeping medical appointments by herself, she concluded
that the evidence failed to satisfy the paragraph C criteria for either Listing. (Id.). As
described below, the plaintiff does not take issue with the ALJ’s finding on this point.
The Step Four Analysis
Because the ALJ determined that Escobar’s impairments did not meet or equal any
of the listed impairments, her analysis continued. The fourth inquiry asks whether “the
applicant’s ‘residual functional capacity’ is such that he or she can still perform past
relevant work[.]” Seavey, 276 F.3d at 5. In the instant case, the ALJ determined as
follows with respect to Escobar’s RFC:
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b)3 except stand/walk
for four hours per day. She can occasionally climb, balance, stoop,
kneel, crouch, or crawl. She can never climb ropes, ladders or
scaffolds. She must avoid concentrated exposure to extreme cold,
noise, vibration, fumes, odors, dusts, gases, and hazards such as
machinery and heights. She is limited to unskilled work with simple
tasks. She can have only occasional changes in the work setting.
She can have only occasional judgment or decision-making. She can

3

20 C.F.R. §§ 404.1567(b) and 416.967(b) define “light work” as follows: “Light work
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of
the time with some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, [the claimant] must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she can
also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.”

-11-

have no interaction with the general public and only occasional,
superficial interaction with co-workers.
(Dec. Finding #5; Tr. 20). This was the same RFC that was included in the ALJ’s
hypothetical question to the VE. (See Tr. 67-68). Escobar contends that this finding is
not supported by substantial evidence because the ALJ did not properly evaluate her
subjective complaints of pain and other symptoms. However, this court finds, for the
reasons described below, that the ALJ’s credibility assessment was appropriate and does
not warrant a reversal or remand of the matter for further consideration by the Social
Security Administration.
In reaching her conclusion regarding Escobar’s RFC, the ALJ followed wellestablished procedures. Thus, the ALJ first considered all of the plaintiff’s symptoms and
the extent to which those symptoms were consistent with the objective medical evidence
and other evidence in the record. (Dec. 7; Tr. 20). Because the ALJ determined that
Escobar’s medically determinable impairments could reasonably be expected to cause the
plaintiff’s alleged symptoms, she went on to determine whether the plaintiff’s subjective
statements about her pain and other symptoms were credible in light of the entire record.
(Dec. 7-8; Tr. 20-21). The ALJ concluded that in this case, “the claimant’s statements
concerning the intensity, persistence and limiting effects of [her] symptoms are not
credible to the extent they are inconsistent with the above [RFC] assessment.” (Dec. 8;
Tr. 21).

-12-

In connection with her assessment of Escobar’s credibility, the ALJ first determined that the plaintiff’s activities of daily living were “essentially intact,” that the
plaintiff was capable of caring for herself, and that she could act in her own self interest.
(Id.). In particular, the ALJ noted that Escobar visited and played with her children, had
recently gotten married, could prepare simple meals, enjoyed watching television, and
was able to take short walks. (Id.). Thus, the ALJ did not credit Escobar’s claim that her
impairments significantly interfered with her ability to carry out day-to-day activities.
The ALJ also found that the plaintiff’s impairments, while severe, had responded
to treatment, and that the plaintiff’s alleged limitations were not fully supported by the
medical evidence. (See id.). Specifically, the ALJ found that while the record supported
the plaintiff’s history of cardiomyopathy, the condition was initially treated with medication and Escobar’s treating cardiologist believed her to be low risk. (Dec. 4, 8; Tr. 17,
21). She also found that although Escobar continued to have some episodes of dizziness,
as well as some mild dyspnea when walking up hills following her heart surgery, her
cardiologist considered the surgery successful, and the plaintiff reported an eighty percent
improvement in her symptoms. (Dec. 8; Tr. 21). The ALJ further noted that the plaintiff’s EKG following her surgery showed normal sinus rhythm. (Id.).
With respect to the plaintiff’s asthma, the ALJ found that there was no medical
evidence showing that the condition was severe enough to preclude all employment.
(Id.). She also found that Escobar’s hearing loss was no more than moderate and could
be treated with hearing aids. (Id.). The ALJ did acknowledge that Escobar was obese.
-13-

(Id.). However, the plaintiff had testified that her weight fluctuated, and the ALJ believed
that losing weight would ease both her cardiac and respiratory issues. (Id.).
With respect to the plaintiff’s mental health impairments, the ALJ found it significant that the record established a history of non-compliance with treatment. (Dec. 9; Tr.
22). For instance, the ALJ noted that in 2007, the plaintiff’s counseling sessions were
terminated due to a lack of consistency. (Id.). There also was evidence showing that at
one point, Escobar had stopped seeing her psychiatrist and had ceased taking her prescribed medication. (Id.). The ALJ found that when Escobar complied with her treatment,
the objective medical evidence showed that she could understand, remember and carry
out simple tasks, interact occasionally with co-workers, tolerate occasional changes in the
workplace, and had some ability to make judgments and decisions. (Id.). Indeed, records
from one of Escobar’s treating therapists indicated that the plaintiff was able to complete
tasks when they were broken down, had no difficulties travelling in public, and could
function acceptably despite routine stress. (Id.). Accordingly, the ALJ determined that
the plaintiff’s subjective complaints were only credible to the extent that they were
consistent with her finding as to the plaintiff’s RFC. (See Dec. 8; Tr. 21).
After describing the basis for her conclusion regarding Escobar’s credibility, the
ALJ discussed the opinion evidence that she had considered in determining Escobar’s
RFC, as well as the weight that she had given to the assessments of the physicians and
mental health professionals who had examined the plaintiff or provided opinions based on
a review of Escobar’s medical records. (Dec. 8-9; Tr. 21-22). With respect to the
-14-

plaintiff’s mental impairments, the ALJ acknowledged that Robert Cserr, M.D., a treating
psychiatrist, had opined that the plaintiff was markedly limited in her ability to handle
complex tasks, in her ability to interact appropriately with co-workers, and in her ability
to respond appropriately to usual work situations and to changes in the routine work
setting. (Dec. 9; Tr. 22). The ALJ explained that she had considered Dr. Cserr’s opinion
on these matters, and had noted that they were based upon Escobar’s reporting rather than
on his own objective findings. (Id.). She also determined that Dr. Cserr’s opinion was
inconsistent with his own finding that Escobar responded favorably to
psychopharmacological treatment. (Id.). Accordingly, the ALJ did not credit Dr. Cserr’s
assessment to the extent it was inconsistent with her determination regarding the
plaintiff’s mental RFC. (See id.).
The ALJ further acknowledged that Elisa Farias, MSW, a treating therapist, had
assessed Escobar as having a Global Assessment of Functioning (“GAF”)4 score of 50
(id.), which indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” Amaral v. Comm’r of Soc. Sec., 797
F. Supp. 2d 154, 158 n.1 (D. Mass. 2010) (quoting Am. Psychiatric Ass’n, Diagnostic &

4

“The GAF scale is a numeric scale ranging from 0 to 100 and is used by mental health
clinicians to rate the social, occupational, and psychological functioning of adults. The higher the
score, the better the individual is deemed to cope with a wide range of activities.” Snow v.
Barnhart, Civil Action No. 05-11878-RGS, 2006 WL 3437400, at *2 n.3 (D. Mass. Nov. 29,
2006).

-15-

Statistical Manual of Mental Disorders 34 (4th ed., text rev. 2000)). However, the ALJ
found that Ms. Farias, a social worker, is not considered an acceptable medical source by
the Social Security Administration, and that her GAF rating was not supported by
Escobar’s treatment records, which revealed a higher level of functioning when the
plaintiff was compliant with her psychiatric treatment and medication. (Dec. 9; Tr. 22).
In particular, the ALJ found that records from Ms. Farias’ office reflected concern that
Escobar was seeking medication without following through on other areas of treatment.
(Dec. 5; Tr. 18; see also Tr. 488). She also pointed out that in her records, Ms. Farias
had stated that overall, Escobar appeared stable with normal levels of anxiety regarding
her fiance’s surgery. (Dec. 9; Tr. 22; see also Tr. 482). Therefore, the ALJ explained
that she was giving greater weight to the treating mental health records than to Ms.
Farias’ opinion regarding the plaintiff’s GAF rating. (Dec. 9; Tr. 22).
The ALJ stated that she was giving significant weight to the mental RFC assessments that had been completed by the non-examining state agency consultants, Carol A.
McKenna, Ph.D. and Henry Schniewind, M.D. (Id.). Those assessments indicated that
the plaintiff remained capable of performing simple jobs without complex instructions,
and jobs that do not require working closely with others. (See Tr. 324, 394). The ALJ
found that these opinions were consistent with evidence in the record, and were supported
by the record as a whole. (Dec. 9; Tr. 22).
With respect to the plaintiff’s physical impairments, the ALJ accepted the view of
Martin S. Maron, M.D., one of Escobar’s treating cardiologists, that the surgery for
-16-

Escobar’s cardiomyopathy had proved successful. (Id.). She also gave significant weight
to the physical RFC assessments that were completed by two state agency consultants,
Mark Colb, M.D. and Rosario Palmeri, M.D. (Id.; see also Tr. 290-97, 398-405). Both
consultants determined that Escobar retained the capacity to perform work at a light level
of exertion. (See id.). The ALJ found that both of these opinions were supported by the
record as a whole. (Dec. 9; Tr. 22). Therefore, the ALJ concluded that while “the
combined impact of the claimant’s physical and mental impairments [were] severe and
limiting[,]” Escobar remained capable of functioning at the level set forth in her finding
regarding the plaintiff’s RFC. (Dec. 10; Tr. 23).
After explaining the basis for her RFC, including the basis for her assessment that
the plaintiff’s statements regarding her symptoms were not entirely credible, the ALJ
concluded that Escobar was unable to perform her past relevant work. (Dec. Finding #6;
Tr. 23). Consequently, the ALJ reached the fifth and last step in the sequential analysis.
The ALJ’s Decision at Step Five
The fifth inquiry is whether, given the claimant’s RFC, education, work experience and age, the claimant is capable of performing other work. See Seavey, 276 F.3d at
5; 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If so, the claimant is not disabled.
20 C.F.R. §§ 404.1520(g), 416.920(g). At step five, the Commissioner has the burden
“of coming forward with evidence of specific jobs in the national economy that the
applicant can still perform.” Seavey, 276 F.3d at 5. In the instant case, the ALJ recognized that “[i]f the claimant had the [RFC] to perform the full range of light work, a
-17-

finding of ‘not disabled’ would be directed by Medical-Vocational Rule 202.21.”5 (Dec.
10; Tr. 23). However, because the ALJ determined that Escobar’s ability to perform all
or substantially all of the requirements of light work had been eroded by additional
limitations, she relied on the testimony of the VE to determine whether jobs exist in the
national economy for an individual with Escobar’s age, education, prior work experience
and RFC. (Dec. 10-11; Tr. 23-24). Based on the VE’s response to her hypothetical
question, the ALJ concluded that Escobar was capable of performing work that exists in
significant numbers in the national economy. (Dec. 11; Tr. 24). Accordingly, the ALJ
found that Escobar was not disabled. (Dec. 11; Dec. Finding #11; Tr. 24).
Additional factual details relevant to this court’s analysis are described below
where appropriate.
III. ANALYSIS
A.

Standard of Review

Escobar is seeking judicial review of the Commissioner’s “final decision” pursuant
to the Social Security Act § 205(g), 42 U.S.C. § 405(g) (the “Act”). The Act provides in
relevant part that:
Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of
such decision by a civil action .... The court shall have power to

5

Rule 202.21 provides guidance for evaluating the capabilities of a younger individual
with at least a high school education and non-transferable job skills to perform “light work.” 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 202.21.

-18-

enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner
of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to
any fact, if supported by substantial evidence, shall be conclusive ....
42 U.S.C. § 405(g) (emphasis added). The Supreme Court has defined “substantial
evidence” to mean “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, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126
(1938)); accord Irlanda Ortiz v. Sec’y of Health & Human Servs., 955 F.2d 765, 769 (1st
Cir. 1991).
It has been explained that:
In reviewing the record for substantial evidence, we are to keep in
mind that “issues of credibility and the drawing of permissible
inference from evidentiary facts are the prime responsibility of the
[Commissioner].” The [Commissioner] may (and, under his
regulations, must) take medical evidence. But the resolution of
conflicts in the evidence and the determination of the ultimate
question of disability is for him, not for the doctors or for the courts.
We must uphold the [Commissioner’s] findings in this case if a
reasonable mind, reviewing the record as a whole, could accept it as
adequate to support his conclusion.
Lizotte v. Sec’y of Health & Human Servs., 654 F.2d 127, 128 (1st Cir. 1981) (quoting
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)). Thus,
“the court’s function is a narrow one limited to determining whether there is substantial
evidence to support the [Commissioner’s] findings and whether the decision conformed
-19-

to statutory requirements.” Geoffroy v. Sec’y of Health & Human Servs., 663 F.2d 315,
319 (1st Cir. 1981). The Commissioner’s decision must be affirmed, “even if the record
arguably could justify a different conclusion, so long as it is supported by substantial
evidence.” Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987).
“Even in the presence of substantial evidence, however, the Court may review
conclusions of law, and invalidate findings of fact that are ‘derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts[.]’” Musto v. Halter, 135 F.
Supp. 2d 220, 225 (D. Mass. 2001) (quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999) (per curiam)) (internal citations omitted). “Thus, if the ALJ made a legal or factual
error, the court may reverse or remand such decision to consider new, material evidence
or to apply the correct legal standard.” Ross v. Astrue, Civil Action No. 09-11392-DJC,
2011 WL 2110217, at *2 (D. Mass. May 26, 2011) (internal citation omitted).
B.

Absence of a Listed Impairment

The plaintiff argues that the Commissioner’s decision to deny her claim for SSI
and SSDI benefits must be reversed because the ALJ’s determination that her impairments did not meet or medically equal a listed impairment was not supported by substantial evidence. (Pl. Mem. (Docket No. 11-1) at 5-8). At step three of the disability
analysis “it is the claimant’s burden to show that [s]he has an impairment or impairments
which meets or equals a listed impairment in Appendix 1” of the social security regulations. Torres v. Sec’y of Health & Human Servs., 870 F.2d 742, 745 (1st Cir. 1989).
-20-

“An impairment meets the listings only when it manifests the specific findings described
in the set of medical criteria for a particular listed impairment.” Martinez Nater v. Sec’y
of Health & Human Servs., 933 F.2d 76, 77 (1st Cir. 1991) (quotations and citation
omitted). “An impairment equals a listed impairment when the set of symptoms, signs
and laboratory findings in the medical evidence supporting the claimant are at least
equivalent in severity to the set of medical findings for the listed impairment.” Id.
(quotations and citation omitted). In the instant case, Escobar has not shown how her
impairments satisfy either of these requirements. Therefore, she has not established that
the ALJ erred at step three of the sequential analysis.
Plaintiff’s Mental Impairments
Escobar argues that her mental health conditions met or equaled Listing 12.04,
which covers affective disorders, and Listing 12.06, which covers anxiety-related
disorders. (Pl. Mem. at 5-7). In order to satisfy Listing 12.04, Escobar had the burden of
showing that the severity of her condition satisfied the criteria set forth in both paragraphs A and B of the Listing (the “paragraph A” and “paragraph B” criteria), or the
criteria set forth in paragraph C of the Listing (the “paragraph C” criteria). 20 C.F.R. Pt.
404, Subpt. P, App. 1 § 12.04 (“The required level of severity for these disorders is met
when the requirements in both A and B are satisfied, or when the requirements in C are
satisfied”). Similarly, in order to satisfy Listing 12.06, Escobar had the burden of
showing that the severity of her condition satisfied both the paragraph A criteria and the
paragraph B criteria, or both the paragraph A criteria and the paragraph C criteria. 20
-21-

C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06 (“The required level of severity for these
disorders is met when the requirements in both A and B are satisfied, or when the
requirements in both A and C are satisfied”). However, the plaintiff has not taken issue
with the ALJ’s determination that her mental impairments “fail[ed] to establish the
presence of the ‘paragraph C’ criteria” (Dec. 7; Tr. 20), and she has not attempted to
explain how her mental impairments satisfied the paragraph A criteria of either Listing.
Therefore, she has failed to show that the ALJ erred by finding that her mental impairments did not meet or equal either of these Listings. See Torres, 870 F.2d at 745 (finding
that claimant did not satisfy his burden of showing that his impairment met or medically
equaled a listing for sensory impairments where, on appeal, “the claimant present[ed] no
substantive argument indicating how he, allegedly, does meet a sensory impairment as
listed in Appendix 1” of the social security regulations); Perez v. Astrue, Civil Action No.
11-30074-KPN, 2011 WL 6132547, at *3 (D. Mass. Dec. 7, 2011) (finding that plaintiff
failed to show that ALJ erred at step three where plaintiff pointed “to no evidence in the
record . . . which indicates that his impairments reach listing-level severity”).
Even assuming, arguendo, that Escobar were able to satisfy the paragraph A
criteria of one or both Listings, she has not shown that her mental impairments satisfy the
paragraph B criteria for affective disorders or anxiety-related disorders. As described in
the ALJ’s decision, in order to make such a showing, the claimant must establish that her
condition results in at least two of the following: “1. Marked restriction of activities of
daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked
-22-

difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of
decompensation, each of extended duration[.]” 20 C.F.R. Pt. 404, Subpt. P, App. 1
§§ 12.04 and 12.06. The ALJ concluded that Escobar had experienced no episodes of
decompensation of an extended duration. (Dec. 7; Tr. 20). She also concluded that
Escobar had only mild restriction in her activities of daily living, and moderate difficulties in social functioning and with regard to concentration, persistence or pace. (Dec.
6-7; Tr. 19-20). Therefore, she found that the paragraph B criteria were not satisfied.
(Dec. 7; Tr. 20).
Escobar does not dispute the ALJ’s finding that she had no extended periods of
decompensation, but she argues that the ALJ’s analysis was flawed because it ignored the
opinion of her treating psychiatrist, Dr. Cserr, that the plaintiff had marked difficulties in
certain areas of mental functioning. (Pl. Mem. at 5-6). The record shows that on April
21, 2011, Dr. Cserr filled out a “Medical Source Statement of Ability to do Work-Related
Activities (Mental)” in which he assessed Escobar as having marked restrictions in her
ability to understand, remember and carry out complex instructions, marked limitations in
her ability to interact appropriately with co-workers, and marked restrictions in her ability
to respond appropriately to usual work situations and to changes in a routine work setting.
(Tr. 496-98). Escobar contends that this evidence indicates that her psychiatric condition
met the requirements of Listings 12.04 and 12.06. (Pl. Mem. at 5-6).
This court finds that Dr. Cserr’s opinion is not sufficient to establish that
Escobar’s mental condition satisfied the paragraph B criteria, much less met or medically
-23-

equaled the specified Listings. As an initial matter, Dr. Cserr did not address Escobar’s
activities of daily living, and his assessment does not undermine the ALJ’s determination
that she had mild restrictions in that area. (See Tr. 496-98). Additionally, although Dr.
Cserr opined that Escobar had marked limitations in her ability to interact with coworkers, he also indicated that she had only moderate limitations in her ability to interact
appropriately with the public and no limitations in her ability to interact appropriately
with supervisors. (Tr. 497). Therefore, his opinion does not establish that she had
marked limitations in her overall ability to function socially.
Dr. Cserr’s opinion also does not necessarily undermine the ALJ’s determination
that Escobar had only moderate difficulties with respect to concentration, persistence or
pace. In the first place, the form that Dr. Cserr filled out did not directly address those
areas of mental functioning. (See Tr. 496-98). Secondly, while Dr. Cserr indicated that
Escobar would have marked limitations with respect to complex instructions and marked
difficulties responding appropriately to usual work situations and changes in the routine
work setting, he opined that she would have no difficulties in understanding, remembering and carrying out simple instructions, and no limitations in her ability to make simple
work-related decisions. (Id.). Accordingly, Dr. Cserr’s opinion does not directly conflict
with the ALJ’s conclusion that Escobar had only moderate limitations in concentration,
persistence or pace.
In any event, the ALJ stated that while she had considered Dr. Cserr’s opinion, she
was not crediting it to the extent it conflicted with her finding regarding the plaintiff’s
-24-

mental RFC. (Dec. 9; Tr. 22). Her decision in this regard was supported by substantial
evidence. “The law in this circuit does not require the ALJ to give greater weight to the
opinions of treating physicians.” Arruda v. Barnhart, 314 F. Supp. 2d 52, 72 (D. Mass.
2004) (quoting Arroyo v. Sec’y of Health & Human Servs., 932 F.2d 82, 89 (1st Cir.
1991)). Thus, “‘[c]ontrolling weight’ is typically afforded a treating physician’s opinion
on the nature and severity of an impairment where it . . . ‘is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence’ in the claimant’s case.” Id. (quoting 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2)). Nevertheless, the ALJ is entitled to “downplay the
weight afforded a treating physician’s assessment of the nature and severity of an impairment where . . . it is internally inconsistent or inconsistent with other evidence in the
record including treatment notes and evaluations by examining and nonexamining
physicians.” Id.
Here, the ALJ found, and the record shows, that Dr. Cserr’s opinions were based
on Escobar’s own reporting rather than on any objective observations or medically
acceptable diagnostic techniques. (See Dec. 9; Tr. 22; see also Tr. 496-97). This fact
alone was sufficient to justify the ALJ’s decision to give it less weight. See Colon v.
Astrue, Civil Action No. 11-30078-GAO, 2012 WL 4106764, at *5 (D. Mass. Sept. 19,
2012) (finding no error in ALJ’s decision to assign little weight to opinion of examining
psychiatrist where “many of his findings were based on the plaintiff’s claims, not on
medical signs or laboratory findings”). In addition, Dr. Cserr’s assessment as to the
-25-

severity of Escobar’s mental impairments was inconsistent with his own treatment
records, in which he stated that Escobar was “doing very well on her meds” and that she
had no complaints or side effects other than some tiredness. (Tr. 470-71). Such evidence
further supports the ALJ’s decision to downplay Dr. Cserr’s opinion. See Arruda, 314 F.
Supp. 2d at 73 (finding that ALJ’s decision to give little evidentiary weight to treating
physician’s opinion was justified where physician’s RFC assessment was inconsistent
with his treatment notes).
Even if Dr. Cserr’s assessment could be read as satisfying the paragraph B criteria
of Listings 12.04 and 12.06, it was inconsistent with other evidence in the record, such as
the opinions of the two state agency consultants, Dr. McKenna and Dr. Schniewind, and
did not have to be credited above these consultants’ conclusions. Both of them found that
Escobar’s mental impairments did not meet or medically equal a listed impairment. (See
Tr. 308-321, 384-397). They also assessed Escobar as having only mild restrictions with
respect to activities of daily living, moderate difficulties in social functioning, and
moderate difficulties in concentration, persistence, or pace. (See Tr. 318, 394). The ALJ
was entitled to rely on these assessments and not fully credit Dr. Cserr’s assessment as to
the extent of the plaintiff’s mental limitations.6

6

The plaintiff insists that the opinions expressed by Dr. McKenna and Dr. Schniewind are
“speculative” and should not have been given significant weight. (Pl. Mem. at 11). This assertion
is not supported by the record. As demonstrated by the consultant’s notes contained in the
Psychiatric Review Technique forms that were completed by Drs. McKenna and Schniewind, the
state agency consultants conducted a careful review of the available records pertaining to
Escobar’s mental health, and rendered their opinions on the basis of that evidence. (See Tr. 320,

-26-

The plaintiff also asserts that the ALJ’s findings regarding the severity of her
mental impairments were inconsistent with the opinion of Escobar’s treating therapist,
Elisa Farias, MSW, that the plaintiff had a GAF score of 50. (Pl. Mem. at 6-7). This
argument too is unpersuasive. “The GAF scale is intended for use by practitioners in
making treatment decisions . . . and neither Social Security regulations nor case law
require an ALJ to determine the extent of an individual’s mental impairment based solely
on a GAF score.” Chanbunmy v. Astrue, 560 F. Supp. 2d 371, 383 (E.D. Pa. 2008)
(quoting Parsons v. Astrue, 2008 WL 539060, at *7 (N.D. Fla. Feb. 22, 2008)). “In fact,
the Commissioner has declined to endorse the GAF scale for ‘use in the Social Security
and SSI disability programs,’ and has indicated that GAF scores have no ‘direct
correlation to the severity requirements of the mental disorders listings.’ See 65 Fed.
Reg. 50746-01, 50764-65, 2000 WL 1173632 (August 21, 2000).” Id. (quoting Parsons,
2008 WL 539060, at *7). Thus, while “[a] GAF of 41-50 generically indicates serious
symptoms . . . OR any serious impairment in social, occupational, or school functioning[,] [a] raw GAF score of 50, without more, does not give a fact finder significant
insight into whether [a claimant] can perform some type of competitive work.” Querido
396). Thus, there was nothing speculative or improper about their assessments, and it was
entirely appropriate for the ALJ to rely on them. See Monroe v. Barnhart, 471 F. Supp. 2d 203,
211 (D. Mass. 2007) (explaining that hearing officer is entitled to adopt the opinion of a nonexamining source). It was also appropriate for the ALJ to give greater weight to the opinions of
Dr. McKenna and Dr. Schniewind than to the opinion of Dr. Cserr in light of the fact that the ALJ
provided “good reasons” for giving limited weight to the treating source opinion. See Amaral,
797 F. Supp. 2d at 162 (explaining that opinions of non-examining sources may be given more
weight than opinions of treating sources where the ALJ provides “good reasons” for his decision
not to adopt the examining source opinions).

-27-

v. Barnhart, 344 F. Supp. 2d 236, 246 (D. Mass. 2004) (quotations, citation and footnote
omitted). See also Chanbunmy, 560 F. Supp. 2d at 383 (“A GAF score, without evidence
that it impaired the ability to work, does not establish an impairment.” (citations
omitted)). Escobar’s suggestion that Ms. Farias’ GAF rating establishes the existence of
a listed impairment has no support in the Social Security regulations or in the relevant
case law.
In any event, the ALJ expressly declined to credit Ms. Farias’ opinion regarding
the severity of Escobar’s mental impairments. (See Dec. 9; Tr. 22). As the ALJ
explained in her decision, clinical social workers like Ms. Farias are not considered
“acceptable medical source[s]” whose opinions are entitled to controlling weight under
the treating physician rule. Courtemanche v. Astrue, No. CA 10-427M, 2011 WL
3438858, at *17 (D.R.I. Jul. 14, 2011). See also 20 C.F.R. §§ 404.1513(a), 416.913(a).
In addition, the ALJ found that the GAF rating “does not appear to be well supported by
the claimant’s treatment records, which support a higher level of functioning when she is
compliant with treatment and medication.” (Dec. 9; Tr. 22). For instance, the ALJ noted
that in her treatment notes, Ms. Farias stated that overall, the plaintiff was “presenting as
stable with normal levels of anxiety about her fiancé’s surgery.” (Id.; see also Tr. 482).
She also cited to a medical report from Joshua Golden, M.D., indicating that medication
had been helpful in treating Escobar’s bipolar disorder, sleeping problems, depression
and mood swings. (Dec. 5; Tr. 18; see also Tr. 326). Consequently, the ALJ decided to
give more credit to the treating mental health records than to Ms. Farias’ opinion. (Dec.
-28-

9; Tr. 22). “[T]he resolution of conflicts in the evidence and the drawing of conclusions
from such evidence are for the [Commissioner,]” not the courts. Irlanda Ortiz, 955 F.2d
at 769. Here, the ALJ gave good reasons for not crediting Ms. Farias’ opinion, and that
decision is entitled to deference.
Finally, the plaintiff suggests that her mental impairments are sufficiently severe to
meet or medically equal Listings 12.04 and 12.06 because both of the state agency
consultants confirmed the fact that she had been diagnosed with an affective disorder, an
anxiety-related disorder, bipolar disorder, and PTSD. (Pl. Mem. at 7). Indeed, Dr.
McKenna completed a Psychiatric Review Technique form (“PRTF”) in which she
confirmed that the plaintiff had been diagnosed with each of these mental impairments,
and Dr. Schniewind completed a PRTF in which he confirmed the diagnoses of affective
disorder and bipolar disorder. (See Tr. 308-21, 384-97). However, “[a] mere diagnosis
of a condition ‘says nothing about the severity of the condition.’” White v. Astrue, Civil
Action No. 10-10021-PBS, 2011 WL 736805, at *6 (D. Mass. Feb. 23, 2011). See also
Colon, 2012 WL 4106764, at *4 (“When assessing the effect of an impairment, the
question is not whether the impairment exists at all but whether it is disabling, that is,
whether it is sufficiently severe to prevent the plaintiff from working.”). Therefore, the
existence of several mental impairments does not undermine the ALJ’s determination at
step three of his analysis.
Plaintiff’s Physical Impairments

-29-

Escobar also contends that she suffers from a hearing loss, which meets a listed
impairment under 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 § 2.00, and a heart condition,
which meets a listed impairment under 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 § 4.00.
Again, however, she has failed to explain how her conditions satisfy the requirements of
a listed impairment or to point to any evidence supporting her position. Therefore, she
has failed to establish that she is entitled to reversal or a remand on this basis.
The record shows that the plaintiff has been diagnosed with mild to moderate
sensorineural hearing loss, which is slightly worse in the left ear. (See Tr. 201, 529-30).
However, as described above, a diagnosis alone is insufficient to establish the severity of
a condition. Furthermore, Section 2.00 of Appendix 1 contains three different listings
relating to hearing loss. They include Listing 2.07 pertaining to “Disturbance of
labyrinthine-vestibular function (including Ménière’s disease);” Listing 2.10 pertaining to
“Hearing Loss Not Treated With Cochlear Implantation;” and Listing 2.11 pertaining to
“Hearing loss treated with cochlear implantation.” Each of these Listings sets forth
certain criteria that must be met in order to establish the existence of a per se disability.
See 20 C.F.R. Pt. 404, Subpt. 1, App. 1 §§ 2.07, 2.10, 2.11. The plaintiff’s failure to
show how her hearing loss meets or medically equals the relevant criteria is fatal to her
claim that her impairment is disabling per se. See Perez, 2011 WL 6132547, at *3
(plaintiff’s failure to point to evidence in the record indicating that his impairments met
listing level severity was fatal to his claim that the ALJ erred at step three in the disability
analysis).
-30-

Escobar’s claim that her heart condition meets or equals a listed impairment fares
no better. The social security regulations recognize that “[t]here are various types of
cardiomyopathy, which fall into two major categories: Ischemic and nonischemic
cardiomyopathy[,]” and that hypertrophic cardiomyopathy, which is at issue in this case,
is considered nonischemic. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.00(H)(3). The
regulations further provide that the Commissioner “will evaluate cardiomyopathy under
4.02, 4.04, 4.05, or 11.04, depending on its effects on [the claimant].” Id. Each of those
provisions has certain criteria that must be satisfied in order to meet the listing. See id.
§§ 4.02, 4.04, 4.05, 11.04. Again, the plaintiff’s failure to explain how the evidence
satisfies any of the relevant criteria is fatal to her claim of error at step three in the ALJ’s
analysis.7
The plaintiff’s assertion that her physical impairments met or equaled a listed
impairment is also undermined by evidence from the state agency physicians that Escobar
retained the physical RFC to perform light work. Specifically, the record shows that on

7

Escobar argues that in her written decision, the ALJ failed to acknowledge that the
plaintiff was referred to pain management for her chest pain following her heart surgery, and that
she continued to experience symptoms from her heart condition in May 2011. (Pl. Mem. at 8).
However, this argument does not explain how the plaintiff’s heart condition satisfies any of the
criteria of a listed impairment or undermines the ALJ’s decision that her impairments did not meet
or equal a listing. Furthermore, in her written decision, the ALJ did acknowledge that in May
2010, following her surgery, Escobar complained about some musculoskeletal discomfort. (Dec.
5; Tr. 18). She also acknowledged that in May 2011, Escobar was having mild dyspnea,
especially when walking up hills or inclines, and reported to her cardiologist that she was having
“some dizziness without palpitations, rapid heart rate, syncope, or near syncope.” (Id.). Therefore, the ALJ did consider evidence showing that the plaintiff continued to experience symptoms
relating to her heart condition even after her April 2010 surgery.

-31-

September 23, 2009, Dr. Colb completed an assessment of Escobar’s physical RFC. (Tr.
290-97). Therein, Dr. Colb found that no limitations had been established in Escobar’s
ability to hear or speak. (Tr. 294). He also determined that Escobar retained the capacity
to lift 20 pounds occasionally and 10 pounds frequently; to stand and/or walk for about 6
hours in an 8 hour work day; and to sit for about 6 hours in an 8 hour work day. (Tr.
291). Additionally, Dr. Colb concluded that Escobar had no limitations on her ability to
push and/or pull; could occasionally crawl, crouch, kneel, stoop, balance, and climb
ramps and stairs; could never climb ladders, ropes or scaffolding; had no manipulative or
visual limitations; and should avoid concentrated exposure to extreme cold, noise,
vibrations, fumes, and hazards such as machinery and heights. (Tr. 291-94). Dr. Colb’s
assessment of Escobar’s RFC was consistent with an ability to perform light work. See
20 C.F.R. §§ 404.1567(b), 416.967(b) (defining “Light work” to include work that
involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds” and “a good deal of walking or standing, or . . . sitting
most of the time with some pushing and pulling of arm or leg controls”). Therefore, it
supports the ALJ’s conclusion that Escobar’s physical impairments did not meet or
medically equal a listing.
The record also shows that on May 4, 2010, Dr. Palmeri completed a physical
RFC assessment based on a review of the plaintiff’s medical records. (Tr. 398-405).
Dr. Palmeri’s assessment was generally consistent with Dr. Colb’s assessment, except
that Dr. Palmeri found that Escobar had the capacity to stand and/or walk for about 4
-32-

hours in an 8 hour work day, and had fewer postural and environmental restrictions.
(Compare Tr. 290-97 with Tr. 398-405). Like Dr. Colb, Dr. Palmeri determined that no
communicative limitations had been established, notwithstanding Escobar’s hearing loss.
(Tr. 402). Additionally, his conclusions supported the ALJ’s findings that Escobar could
perform a limited range of light work, as described in her assessment of the plaintiff’s
RFC, and that Escobar’s physical limitations did not render her per se disabled.
C.

Adequacy of the ALJ’s Credibility Determination

The plaintiff next argues that the ALJ’s assessment of her credibility is not
supported by substantial evidence because the ALJ failed to apply the so-called “Avery
factors” in deciding not to credit Escobar’s complaints of disabling pain and other
symptoms. (Pl. Mem. at 8-9). Although the ALJ did not specifically list the Avery
factors in her written decision, this court finds that she fulfilled her obligation to consider
the relevant factors in connection with her credibility determination.
“The regulations recognize that a person’s symptoms may be more severe than the
objective medical evidence suggests. Therefore, the regulations provide six factors
(known as the Avery factors) that will be considered when the applicant alleges pain” or
other symptoms.8 Makuch v. Halter, 170 F. Supp. 2d 117, 126 (D. Mass. 2001) (internal
punctuation, emphasis, and citation omitted). These are:

8

“While the Avery factors only discuss ‘pain,’ Social Security Ruling 96-7p makes it clear
that the factors also apply to ‘other symptoms.’” Amaral, 797 F. Supp. 2d at 162 n.3 (quoting
SSR 96-7p, 1996 WL 374186, at *3).

-33-

(1) the nature, location, onset, duration, frequency, radiation, and
intensity of pain; (2) any precipitating or aggravating factors; (3) the
type, dosage, effectiveness, and adverse side effects of any pain
medication; (4) any treatment, other than medication, for the relief of
pain; (5) any functional restrictions; and (6) the claimant’s daily
activities.
Rohrberg v. Apfel, 26 F. Supp. 2d 303, 308 (D. Mass. 1998) (citing Avery v. Sec’y of
Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986)). While the ALJ must consider
each of these factors, there is no requirement that she make specific findings regarding
each of the factors in her written decision. See 20 C.F.R. § 404.1529(c)(3) (listing Avery
factors as factors that the Commissioner “will consider” in evaluating subjective
complaints of pain and other symptoms). See also Rand v. Barnhart, 357 F. Supp. 2d
361, 368 (D. Mass. 2005) (“While it may be argued that it would have been more helpful
for the hearing officer explicitly to outline the Avery factors in making his credibility
determination, it is sufficiently clear from the record that he thoroughly questioned [the
claimant] according to those guidelines at the hearing[.]”).
In the instant case, the ALJ satisfied her obligation to consider the relevant factors.
During the hearing, Escobar provided testimony regarding the intensity, persistence and
limiting effects of her pain and other symptoms. For example, but without limitation,
Escobar described the pain she experiences in her lower back and chest as a result of her
heart condition, as well as the impact that her heart-related symptoms have on her ability
to sleep. (Tr. 49-51). She also explained that due to the progression of her hearing loss,
she is unable to hear out of her left ear despite the use of hearing aids. (Tr. 51).
-34-

Additionally, Escobar provided details as to how her mental health conditions effect her,
including how they cause her to have mood swings, become argumentative, cry for no
reason, and lose concentration. (Tr. 52, 62-63). She further explained that she
experiences flashbacks and nightmares as result of her PTSD. (Tr. 61-62).
In addition to Escobar’s testimony, the ALJ reviewed the medical records and
considered complaints that the plaintiff had made to her treating physicians regarding the
extent and limiting effects of her symptoms. For example, but again without limitation,
the ALJ noted in her written decision that Escobar had complained to her cardiologists
about chest pain, shortness of breath, fatigue, and difficulties walking up stairs or hills.
(Dec. 4; Tr. 17). She also considered reports that Escobar had made to her mental health
providers regarding her feelings of anxiety, stress, and fatigue, and the difficulties she
experienced in maintaining positive social relationships. (Dec. 4-5; Tr. 17-18). As
described above, the ALJ credited Escobar’s claims to some extent, and found that she
“does have impairments that more than minimally impair her ability to perform workrelated activities.” (Dec. 8; Tr. 21). However, the ALJ found that the plaintiff’s
complaints regarding the extent of her symptoms were undermined by medical evidence
showing that she responded well to treatment, had a history of non-compliance with her
mental health treatment, and was capable of functioning acceptably on a day-to-day basis.
(See Dec. 4-5, 8-9; Tr. 17-18, 21-22).
With respect to the details of Escobar’s treatment, the ALJ considered Escobar’s
testimony that she had not been able to obtain relief from her symptoms of cardiomy-35-

opathy with medication prior to her heart surgery, and that she had to resume medication
even after her surgery due to continuing symptoms of chest pain and pressure, breathlessness, and fatigue. (Tr. 48-49). The ALJ also considered Escobar’s testimony that she
requires new hearing aids to compensate for continuing hearing loss, and that her
psychiatric medications help “[a] little bit” and relieve some of her anxiety, but also make
her tired and give her headaches. (Tr. 51-53). The ALJ found that Escobar’s assertion
that her treatment was not effective enough to enable her to perform work-related
activities was inconsistent with objective medical evidence showing that her cardiologist
considered her “low risk” with respect to her cardiomyopathy, that the plaintiff had been
able to obtain some limited improvement for her heart-related symptoms from beta
blocker therapy prior to her heart surgery, and that the plaintiff had reported an 80
percent improvement in her symptoms following her surgery. (Dec. 4-5; Tr. 17-18). The
ALJ further found that Escobar’s claim was inconsistent with evidence showing that the
plaintiff had only mild to moderate hearing loss, and that she did well and presented as
stable when she remained on her psychiatric medications and followed through with her
mental health treatment. (Dec. 5-6, 8-9; Tr. 18-19, 21-22).
Finally, the record illustrates that the ALJ considered Escobar’s statements about
her activities of daily living, including her interactions with her children, other family
members and friends, her participation in household chores, and her efforts to take walks
for exercise. (Tr. 37-39, 52-55, 58-60). Not only did Escobar testify about these matters
at the hearing, but the ALJ also addressed Escobar’s ability to carry out such activities in
-36-

her written decision. Therein, the ALJ determined that Escobar’s “activities of daily
living are essentially intact” and that she was able to care for her personal needs, take
short walks, participate in the care of her children, prepare simple meals, and had recently
gotten married. (Dec. 6, 8; Tr. 19, 21). Accordingly, the record demonstrates that the
ALJ considered and applied the Avery factors in deciding not to fully credit Escobar’s
subjective complaints of disabling pain and other symptoms.
The plaintiff contends that in rendering her finding regarding Escobar’s ability to
perform daily activities, the ALJ disregarded statements that the plaintiff made at the
hearing regarding her inability to prepare her own meals, drive a car, shop for food, or
perform household chores. (Pl. Mem. at 10). According to the plaintiff, that evidence
demonstrated that she was incapable of engaging in substantial gainful activity. (Id.).
Thus, she contends that the ALJ’s failure to credit her testimony amounted to reversible
error.
Even assuming the plaintiff’s assumption is correct, and that evidence of an
inability to perform daily activities alone supports a claim of disability, her assertion that
the ALJ erred in this regard is without merit. While the plaintiff’s hearing testimony may
have supported a claim that she had significant limitations in her ability to carry out such
activities, it was contradicted by other evidence in the record, including statements that
Escobar provided in a Function Report that was filed in support of her claims for benefits.
In the Function Report, Escobar stated that she was able to perform housework, including
making beds, cleaning dishes, sweeping floors and doing laundry. (Tr. 164, 166). She
-37-

also indicated that she had no difficulties with personal care, was able to prepare simple
meals for herself on a daily basis, took short walks several times a week, sometimes went
shopping, had no problems handling money, and enjoyed doing puzzles, crosswords, and
watching television. (Tr. 165-68). Escobar further stated that she talked to her three
children on the phone every night, visited them weekly, and played with them. (Tr. 168).
In addition, during the hearing, Escobar testified that she has no physical or mental
limitations that would prevent her from taking care of her children if she were to regain
custody of them in the future. (Tr. 55). Therefore, the ALJ’s finding with respect to
Escobar’s ability to perform activities of daily living was based on substantial evidence in
the record, and supports her conclusion regarding the plaintiff’s credibility.9 See Teixeira
v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (“evidence of daily activities can be
used to support a negative credibility finding”).
D.

Plaintiff’s Challenge to the Step Five Analysis

Escobar also takes issue with the ALJ’s finding at step five that there are a significant number of jobs in the national economy that the plaintiff is capable of performing.

9

In connection with her challenge to the ALJ’s credibility assessment, Escobar again
argues that the ALJ erred by failing to credit Dr. Cserr’s opinion that the plaintiff’s mental health
impairments met or medically equaled Listing 12.04 for affective disorders. (Pl. Mem. at 10-11).
As described above, Dr. Cserr did not indicate that any of Escobar’s mental impairments met or
medically equaled a listed impairment, and his records do not support such a conclusion. Nor has
the plaintiff presented any evidence that Escobar’s physical impairments met or equaled any of the
listed impairments.

-38-

For the reasons described below, this court finds the plaintiff’s claims of error at this
stage are unpersuasive, and concludes that the ALJ’s finding must be upheld.
Combination of Impairments
The plaintiff contends that the ALJ improperly assessed each of Escobar’s
impairments separately instead of considering the combined impact of those impairments
on her ability to perform work-related activities.10 (Pl. Mem. at 13-14). “SSA regulations
and case law mandate that the ALJ consider the combined effect of a claimant’s impairments at each step of the sequential analysis.” Snow, 2006 WL 3437400, at *6. The
record establishes that the ALJ satisfied that requirement here. As described in her
written decision, the ALJ specifically recognized that in order to determine whether
Escobar was disabled, she was obligated to evaluate whether the plaintiff was able “to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment or combination of impairments that can be expected to
result in death or that has lasted or can be expected to last for a continuous period of not
less than 12 months.” (Dec. 1; Tr. 14 (emphasis added)). The ALJ also stated, at step
three, that she had reviewed the entire record to determine “whether any physical or
mental impairments, or combination of impairments,” met or medically equaled a listed
impairment. (Dec. 6; Tr. 19 (emphasis added)). Similarly, at step four, the ALJ express-

10

Although Escobar’s argument that the ALJ failed to consider the combined impact of
her impairments was raised in connection with her challenge to the ALJ’s finding at step five, the
argument appears to relate more generally to the ALJ’s decision as a whole.

-39-

ly found “the combined impact of the claimant’s physical and mental impairments to be
severe and limiting” but also that “the combined impact results in her [RFC] to perform
at the level set forth above.” (Dec. 10; Tr. 23 (emphasis added)). Additionally, the ALJ’s
comprehensive discussion of Escobar’s medical records, which is described in connection
with her finding at step two, demonstrates “adequate consideration of the combined effect
of [the] claimant’s impairments despite the fact that the impairments are discussed
individually rather than collectively.” Snow, 2006 WL 3437400, at *6. Therefore, the
plaintiff’s claim of error on this issue is without merit. See Gooch v. Sec’y of Health &
Human Servs., 833 F.2d 589, 591-92 (6th Cir. 1987) (the fact that the ALJ’s decision was
based on a review of the entire record, and that the ALJ specifically referred to “a
combination of impairments” in deciding that the claimant did not meet the listings,
demonstrated that the ALJ fulfilled his obligation to consider the combination of
impairments, notwithstanding “the fact that each element of the record was discussed
individually”).
Hypothetical Question to the VE
Escobar also challenges the ALJ’s reliance on the VE’s testimony in rendering her
decision at step five in her analysis, arguing that the hypothetical question that was posed
to the VE did not reflect the most recent assessment from an expert regarding the plaintiff’s physical RFC. (Pl. Mem. at 16). Specifically, according to the plaintiff, in 2010
Dr. Palmeri, one of the state agency consultants, “opined that the claimant would only be
able to stand and/or walk for 2 hours of an 8 hour work day. . . . This report was the
-40-

most recent physical consultative report, however the ALJ chose to utilize the oldest
report conducted in 2009 by Dr. Mark Colb in formulating hypotheticals to the VE.”
(Id.). Thus, the plaintiff asserts that the ALJ’s decision to reject Dr. Palmeri’s assessment
in favor of Dr. Colb’s less recent assessment amounted to “clear error and abuse of
discretion by the ALJ.” (Id.).
This court finds that the plaintiff’s argument is based upon a misreading of
Dr. Palmeri’s assessment and a misunderstanding of the ALJ’s decision. In his RFC
assessment, Dr. Palmeri checked a box indicating that Escobar retained the capacity to
stand and/or walk for “at least 2 hours in an 8-hour workday[,]” but then specified in
writing that Escobar had the capacity to stand and/or walk for about 4 hours in an 8-hour
workday. (Tr. 399 (emphasis added)). The ALJ agreed, and incorporated that limitation
into the hypothetical that she posed to the VE at the hearing. (See Tr. 67-68). In doing
so, the ALJ rejected Dr. Colb’s opinion that Escobar had the ability to stand and/or walk
for about 6 hours in an 8-hour workday. (See Tr. 291). Accordingly, the plaintiff’s
assertion that the ALJ rejected Dr. Palmeri’s opinion is belied by the administrative
record.
To the extent the ALJ credited Dr. Colb’s opinions on other aspects of Escobar’s
RFC, they were more restrictive, and thus more favorable to the plaintiff, than the
opinions expressed by Dr. Palmeri. For example, but without limitation, Dr. Palmeri
determined that Escobar had the capacity to climb ramps and stairs frequently, to climb
ladders, ropes and scaffolds occasionally, to stoop, kneel, crouch and crawl frequently,
-41-

and to balance occasionally. (Tr. 400). The ALJ rejected that assessment and determined, consistent with Dr. Colb’s opinion, that Escobar could occasionally climb,
balance, stoop, kneel, crouch, or crawl, but that she could never climb ropes, ladders or
scaffolds. (See Tr. 68, 292). Even if it were assumed that the ALJ erred by adopting
Dr. Colb’s opinions rather than Dr. Palmeri’s more recent assessment, her decision to do
so was more favorable to the plaintiff. Therefore, any error was harmless and does not
warrant a reversal or remand of the matter to the Commissioner.
Escobar asserts that the ALJ’s hypothetical question was improper in any event
because the ALJ failed to “ask the VE to consider the ‘mental demands of unskilled
work.’” (Pl. Mem. at 18). This argument too is belied by the record. The Commissioner
has explained that “[t]he basic mental demands of competitive, remunerative, unskilled
work include the abilities (on a sustained basis) to understand, carry out, and remember
simple instructions; to respond appropriately to supervision, coworkers, and usual work
situations; and to deal with changes in a routine work setting.” SSR 85-15 (S.S.A. 1985),
1985 WL 56857, at *4. During the hearing, the ALJ not only confirmed that the VE was
familiar with the Social Security Administration’s definition of unskilled work, but also
specified that the hypothetical claimant would be “limited to unskilled work with simple
tasks, only occasional changes in the work [setting], only occasional judgment or decision
making involving no interaction with the general public, and only occasional superficial
interaction with co-workers.” (Tr. 63, 68). Therefore, the VE was specifically asked to
consider the mental demands associated with unskilled work, as further limited by the
-42-

ALJ’s description of the claimant’s mental RFC. Therefore, the plaintiff’s claim of error
is without merit.11
Application of Grid Rule 202.04
Finally, Escobar argues that even if the ALJ’s description of her RFC were correct,
Rule 202.04 of the Medical-Vocational Guidelines (the “Grid”) would direct a finding of
disability in her case. (Pl. Mem. at 18-19). Therefore, she contends that the ALJ erred at
step five by failing to find her disabled. This court disagrees for the reasons that follow.
At step five, “the burden is on the [Commissioner] to demonstrate that there are
jobs in the national economy that claimant can perform.” Heggarty v. Sullivan, 947 F.2d
990, 995 (1st Cir. 1991). “The Grid is designed to enable the [Commissioner] to satisfy
this burden in a ‘streamlined’ fashion without resorting to ‘the live testimony of
vocational experts.’” Ortiz v. Sec’y of Health & Human Servs., 890 F.2d 520, 524 (1st
Cir. 1989) (quoting Sherwin v. Sec’y of Health & Human Servs., 685 F.2d 1, 4 (1st Cir.
1982)). It “consists of a matrix of the applicant’s exertional capacity, age, education, and
work experience. If the facts of the applicant’s situation fit within the Grid’s categories,

11

To the extent Escobar claims that the ALJ should have relied on the VE’s response to
her counsel’s hypothetical question rather than the VE’s response to the ALJ’s hypothetical
question, she has failed to articulate a basis for her contention. (See Pl. Mem. at 15-16). As
described above, Escobar’s attorney asked the VE to assume that a hypothetical claimant who had
the same limitations as those described by the ALJ would call in sick once a month or come in late
once a week due to her medical condition. (Tr. 70). However, the plaintiff has not pointed to
any specific evidence in the record to support her counsel’s assumption regarding her rate of
absenteeism. Therefore, she has not shown that the ALJ’s decision not to rely on the VE’s
response to that question was in error.

-43-

the Grid ‘directs a conclusion as to whether the individual is or is not disabled.’” Seavey,
276 F.3d at 5 (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a)).
The plaintiff recognizes that in cases such as this one, “where a claimant has
nonexertional impairments in addition to exertional limits, the Grid may not accurately
reflect the availability of jobs such a claimant could perform.”12 Heggarty, 947 F.2d at
996. Thus, “[i]f the occupational base is significantly limited by a nonexertional impairment, the [Commissioner] may not rely on the Grid to carry the burden of proving that
there are other jobs a claimant can do.” Id. Ordinarily, under such circumstances, the
“testimony of a vocational expert is required.” Id.
There is no dispute that in the instant case, the plaintiff had significant nonexertional impairments that required the testimony of a VE at step five in the ALJ’s analysis.
Nevertheless, Escobar argues that the Grid directs a finding of disability. She reasons
that even if the ALJ had found that she could perform the full range of light work,
without the additional limitations resulting from her nonexertional limitations, Rule
202.04 of the Grid would compel a finding of disability for someone of her age, educa-

12

Exertional limitations are those that “affect [an individual’s] ability to meet the strength
demands of jobs” including “strength demands for sitting, standing, walking, lifting, carrying,
pushing, and pulling.” 20 C.F.R. §§ 404.1569(a), 416.969(a). Nonexertional limitations are ones
“which affect [an individual’s] ability to meet the demands of jobs other than the strength
demands[.]” 20 C.F.R. §§ 404.1569a(a), 416.969a(a). They include, but are not limited to,
difficulty functioning due to nervousness, anxiety or depression, and “difficulty maintaining
attention or concentrating[.]” 20 C.F.R. §§ 404.1569a(c), 416.969a(c).

-44-

tion and past work experience. (Pl. Mem. at 19). Accordingly, she argues that the ALJ
should have found her disabled and granted her request for benefits.
Again, the plaintiff’s argument is unpersuasive. Although Grid Rule 202.04 does
direct a finding of disability for an individual with a high school diploma and a history of
no work or unskilled work, it applies to individuals of “advanced age,” which is defined
as individuals who are 55 or older. See 20 C.F.R. Pt. 404, Subpt. P., App. 2 § 202.04; 20
C.F.R. §§ 404.1563(e), 416.963(e)). Escobar, who was born in 1982 and was 29 years
old at the time the ALJ issued her decision, is considered a younger individual under the
regulations. See 20 C.F.R. §§ 404.1563(c), 416.963(c) (defining “younger person” as an
individual under the age of 50). Pursuant to the Grid, a younger individual who has a
high school diploma and can perform the full range of light work is not considered
disabled notwithstanding the fact that the individual may have no prior work history or
transferable skills. See 20 C.F.R. Pt. 404, Subpt. P., App. 2 §§ 202.20-202.22. Therefore, the plaintiff’s assertion that there was no substantial evidence to support the ALJ’s
finding at step five must fail.
IV. CONCLUSION
For all the reasons detailed herein, the “Plaintiff’s Motion for Judgment” (Docket
No. 11) is DENIED and the “Defendant’s Motion to Affirm the Commissioner’s
Decision” (Docket No. 16) is ALLOWED.

/ s / Judith Gail Dein
Judith Gail Dein
-45-

U.S. Magistrate Judge

-46-