De Leon Alonso v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 9 Motion to Affirm Decision of Commissioner. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Maggie DeLeon Alonso
v.
Civil No. 14-cv-429-JL
Opinion No. 2015 DNH 170
Carolyn Colvin, Acting Commissioner,
Social Security Administration
ORDER ON APPEAL
Maggie DeLeon Alonso appeals the Social Security
Administration’s (“SSA”) denial of her application for disability
benefits.
An Administrative Law Judge (“ALJ”) found that Alonso
suffered from a back disorder, arthritis, depression, and
anxiety.
The ALJ nevertheless found that Alonso was not disabled
within the meaning of the Social Security Act because she has
sufficient residual functional capacity (“RFC”) to work at jobs
that exist in significant numbers in the national economy.
42 U.S.C. § 423(d)(2)(A).
See
The SSA Appeals Council subsequently
denied Alonso's request for review of the ALJ’s decision,
rendering the ALJ’s decision final.
Alonso timely appealed to
this court, pursuant to 42 U.S.C. § 405(g).
In due course,
Alonso moved to reverse the SSA’s decision and the SSA’s Acting
Commissioner moved to affirm the denial of benefits.
Alonso asserts four arguments.
First, she claims that the
ALJ erroneously assessed her credibility.
that the ALJ erred in determining her RFC.
Next, Alonso argues
Alonso also asserts
that the ALJ impermissibly used the Medical-Vocational Guidelines
(“Grids”) in assessing her disability and ability to work.
Finally, Alonso argues that the ALJ failed to adequately develop
the administrative record.
After consideration of the parties’ arguments and the
administrative record, the court finds the record evidence
sufficient to support the ALJ's decision.
Therefore, Alonso's
motion is denied and the Acting Commissioner’s motion is granted.
I.
Standard of Review
The court’s review of SSA’s final decision “is limited to
determining whether the ALJ used the proper legal standards and
found facts upon the proper quantum of evidence.”
of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Ward v. Comm’r
The ALJ’s
decision will be upheld if it is supported by substantial
evidence, that is, “such evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotations omitted).
This is
less evidence than a preponderance but “more than a mere
scintilla.”
(1966).
Id.; Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
The possibility of drawing two inconsistent conclusions
from the evidence does not preclude a finding of substantial
evidence.
Consolo, 383 U.S. at 620.
Accordingly, the ALJ’s
resolution of evidentiary conflicts must be upheld if supported
2
by substantial evidence, even if contrary results are
supportable.
Rodriguez Pagan v. Sec’y of Health & Human Servs.,
819 F.2d 1, 2 (1st Cir. 1987).
The court next turns to the ALJ’s
decision.
Background1
II.
In analyzing Alonso's benefit application, the ALJ invoked
the required five-step process.
See 20 C.F.R. § 416.920.
First,
she concluded that Alonso had not engaged in substantial work
activity after the alleged onset of her disability on March 16,
2010.
Next, the ALJ determined that Alonso suffered from several
severe impairments:
and anxiety.
a back disorder, arthritis, and depression
See 20 C.F.R. § 416.1920(c).
At the third step,
the ALJ concluded that Alonso's impairments––either individually
or collectively--did not meet or “medically equal” one of the
listed impairments in the Social Security regulations.
C.F.R. §§ 416.920(d), 416.925, & 416.926.
See 20
The ALJ next found
that Alonso had the RFC to perform sedentary work, with the
modification that such work was unskilled.
See 20 C.F.R.
§§ 404.1567(a) and 416.967(a).
1
The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts is incorporated by reference.
See L.R. 9.1(d).
3
After finding at step four that Alonso could not perform any
past relevant work, the ALJ proceeded to step five, at which the
SSA bears the burden of showing that a claimant can perform other
work that exists in the national economy.
274 F.3d 606, 608 (1st Cir. 2001).
Freeman v. Barnhart,
Here, the ALJ, relying on
Alonso's testimony, medical records, and an impartial
psychiatrist's testimony, applied the Grids and concluded Alonso
could perform jobs which exist in the regional and national
economy.
Accordingly, the ALJ found Alonso not disabled within
the meaning of the Social Security Act.
III.
A.
Analysis
Credibility
In considering Alonso's claim, the ALJ stated that “the
credibility of [her] allegations is weakened by inconsistencies
between her allegations and the medical evidence. . . .
The
claimant does experience some levels of pain and limitations, but
only to the extent described in the RFC above.”
§ 404.1545(a)(3).
See 20 C.F.R.
Alonso argues that the ALJ improperly weighted
her ability to engage in activities of daily living, and failed
to fully inquire into the nature and severity of her impairments
insofar as they affected those activities.
The court finds the
record sufficient to support the ALJ's credibility finding.
4
In analyzing Alonso’s credibility, the ALJ was required to
employ a two-step process, first determining if a medically
determinable impairment is present, and if so, then evaluating
the intensity, persistence and limiting effects of the alleged
symptoms associated with such impairment.
20 C.F.R. § 404.1529.
The second step of the analysis requires the ALJ to consider
several factors:
1) claimant’s daily activities; 2) the
location, duration, frequency and intensity of pain or other
symptoms; 3) precipitating and aggravating factors; 4)
effectiveness and side effects of medication; 5) effectiveness of
treatment; 6) measures taken by the claimant to relieve symptoms;
and 7) any other factors concerning claimant's limitations.
20
C.F.R. § 404.1529(c); Avery v. Sec’y of Health & Human Servs.,
797 F.2d 19, 29 (1st Cir. 1986).
Ultimately, however, an ALJ's
credibility determination is entitled to deference, especially
when supported by specific evidence.
Simmons v. Astrue, 736 F.
Supp. 2d 391, 401 (D.N.H. 2010) (citing Frustaglia v. Sec’y of
Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987)
(“[t]he credibility determination by the ALJ, who observed the
claimant, evaluated [her] demeanor, and considered how that
testimony fit in with the rest of the evidence, is entitled to
deference, especially when supported by specific findings”)).
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With respect to activities of daily living, the ALJ noted
record evidence that Alonso prepares meals, uses public
transportation alone, shops, reads, watches television, goes to
church, takes care of her children, and attends to her personal
care needs.
These daily activities, the ALJ concluded, at least
partially undermined her claims of disabling symptoms.
See Young
v. Astrue, 2011 NH 140, 23 (observing that a claimant's
performance of activities of daily living should not be equated
to an ability to work, but can support a negative credibility
finding).
To the extent Alonso cites record evidence that casts
doubt on her ability to perform daily activities, such
conflicting evidence is for the ALJ to resolve.
Barnhart, 276 F.3d 1, 10 (1st Cir. 2001).
Seavey v.
The court also rejects
Alonso’s argument that the ALJ failed to mention that she needed
help with some tasks and could not perform others.
See Teixeira
v. Astrue, 755 F. Supp. 2d 340, 347 (D. Mass. 2010) (“That
Teixeira claims to have had assistance from her older daughters
in completing the household work and that she often takes breaks
does not prevent the hearing officer from using the testimony of
Teixeira’s daily activities as one factor in assessing
credibility.”).
Alonso also argues that the ALJ should have developed the
record further with respect to her activities of daily living.
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But, as this court has noted, “[w]hen a claimant is represented,
the ALJ should ordinarily be entitled to rely on claimant’s
counsel to structure and present the claimant’s case in a way
that claimant’s claims are adequately explored.”
Dubois v.
Astrue, 2012 DNH 109, 13 n.4 (quoting Faria v. Comm'r of Soc.
Sec., 187 F.3d 621, 1998 WL 1085810 at *1 (1st Cir.1998)
(unpublished)).
However, even if she accurately assesses the
ALJ’s performance, Alonso fails to articulate in any meaningful
fashion what additional evidence would have been adduced that
might have altered the outcome.
argument.
This is also fatal to her
See Evangelista v. Sec’y of Health & Human Servs., 826
F.2d 136, 140 (1st Cir. 1987) (“We have held that remand is
indicated only if, were the proposed new evidence to be
considered, the Secretary’s decision ‘might reasonably have been
different.’”) (citation and internal quotations omitted).
Next, even if the ALJ’s use of daily living activities to
inform the credibility determination was somehow flawed, the
record also reflects that the ALJ permissibly relied on the
contrast between Alonso’s subjective complaints and the medical
evidence in that regard.
See Wrenn v. Barnhart, 2005 DNH 098,
27; SSR 96-7P, 1996 WL 374186 at *1.
For example, Alonso
asserted that she had disabling difficulties in lifting,
standing, walking, sitting, and using her hands.
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The ALJ,
however, recounted records from Drs. Eyassu and Balmaceda, in
which Alonso reported, inter alia, normal strength in her upper
and lower extremities, the ability to bend 45 degrees, and full
range of motion of various joints.
Finally, Alonso avers that the ALJ failed to properly
consider all of the Avery credibility factors.
disagrees.
The court
First, it is important to note that the ALJ is not
required to “address every Avery factor in his opinion so long as
proper inquiry is made during the administrative hearing.”
v. Astrue, 2012 DNH 005, 17.
proper inquiry.
Ault
Here, the record reflects such
The record further discloses that the ALJ
considered both Alonso's subjective complaints, the medical
records regarding those symptoms, and the contrast between the
two.
And although the ALJ did not specifically discuss Alonso’s
medication, Alonso gives no indication here of any disabling side
effects that would have altered the outcomes.
the ALJ in this regard is harmless.
Thus, any error by
Evangelista, 826 F.2d at
140.
The court accordingly finds that the ALJ's credibility
finding is supported by substantial evidence.
B.
RFC Determination
As previously noted, the ALJ determined that Alonso had the
RFC to perform sedentary work, except that the work must be
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unskilled.
See 20 C.F.R. §§ 404.1567(a) and 416.967(a).
Alonso
alleges eight separate deficiencies in the ALJ’s analysis. The
court finds that these allegations fall short of the mark and
that the RFC determination is supported by the record.
The court
addresses the RFC-related claims seriatim.
1.
Mental Limitations
Alonso first argues that her RFC was improperly determined
because the ALJ failed to identify any mental limitations
resulting from her depression and anxiety, despite finding them
to be severe impairments.
The court disagrees.
In the first
instance, the finding of a “severe impairment” does not
inexorably preclude an RFC involving unskilled work.
See e.g.,
Downs v. Colvin, 2015 DNH 113 (affirming RFC limitation including
unskilled work notwithstanding severe mental impairment).
And
contrary to Alonso’s assertion that the ALJ failed to take into
account limitations occasioned by her depression and anxiety, the
ALJ considered the opinion of Dr. Fujiwaka, a consultative
psychological examiner, who concluded that Alonso could follow
and understand simple directions and instructions, perform simple
tasks independently, maintain a schedule and make appropriate
decisions.
These abilities are not inconsistent with those
required for unskilled work: “the abilities (on a sustained
basis) to understand, carry out, and remember simple
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instructions; to respond appropriately to supervision, coworkers,
and usual work situations; to deal with changes in a routine work
setting.”
SSR 85-15, 1985 WL 56857 at *4; see also Hines v.
Astrue, 2012 DNH 121, 30.
In addition to Dr. Fujiwaka's report, the ALJ also relied on
a state agency medical consultant, Dr. Reddy, who observed that
Alonso could understand, execute and remember simple instructions
and work-like procedures, maintain attention and concentration
for at least two-hour periods, make simple work-related
decisions, and sustain a normal day and week while maintaining a
consistent pace.
Thus, contrary to Alonso’s assertion, the ALJ
did not ignore the Social Security Program Operations Manual
Systems description of the mental abilities necessary for
performing unskilled work.
Indeed, Dr. Reddy’s observations
covered every listed criterion, in either form or substance.
Against this backdrop, the court finds that the ALJ properly
considered Alonso's mental limitations in assessing her RFC.
2.
Weight given to Dr. Halperin
Alonso next argues that the ALJ erred in giving significant
weight to the testimony of Dr. Edward Halperin, a non-treating
psychiatrist who reviewed the medical record and testified that
Alonso suffered from mild depression secondary to back pain, low
back pain, some anxiety, and insomnia, and that she had mild
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limitations in daily activities, social functioning, maintaining
concentration persistence and pace, and had no episodes of
decompensation.
The gist of the argument is that because Halperin’s opinion
concerned whether Alonso’s mental impairment met or equaled one
of the listed impairments at steps 2 and 3 of the evaluation
process, the ALJ could not consider it for RFC purposes. However,
the ALJ specifically noted:
The limitations identified in the “paragraph B”
criteria are not a residual functional capacity
assessment (RFC), but are used to rate the severity of
mental impairments at steps 2 and 3 of the Evaluation.
The mental RFC used at steps 4 and 5 of the Evaluation
requires a more detailed assessment, by itemizing
various functions contained in the broad categories
found in paragraph B.
Tr. at 37.
Moreover, not only did the ALJ recognize the difference between
the Paragraph B and RFC analyses, but the RFC analysis does
contain a detailed function-by-function discussion of the
opinions of Drs. Reddy and Fujiwaka.
The court finds no error in
the weight given to Dr. Halperin's opinion.
3.
Dr. Fujiwaka
Alonso next argues that the ALJ’s RFC assessment did not
consider Dr. Fujiwaka’s observation that she would have some
difficulty maintaining attention and concentration, could learn
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new tasks but with extended time, and may have some difficulty
relating with others and dealing with stress to a certain extent.
Although the ALJ did not explicitly address this aspect of Dr.
Fujiwaka’s findings, the court finds no error.
As previously
noted, Dr. Fujiwaka’s opinion is not inconsistent with the
demands of unskilled work.
4.
Thus, any such error is harmless.
Dr. Reddy
Alonso contends that the ALJ's RFC analysis failed to
consider numerous mental limitations noted in Dr. Reddy’s mental
RFC assessment.
However, these limitations were indicated in
boxes to be checked within the “summary” portion of the
assessment, rather than the narrative.
The ALJ, however is not
obligated to consider the “checkbox”" answers controlling.
See
McGrath v. Astrue, 2012 DNH 060, 15 (finding that “the written
narrative in section III of the form, rather than the checkboxes
in section I” constitutes the claimant’s mental RFC assessment);
see also Social Security Administration Program Operation Manual
System § DI 24510.060(B)(2)(a) & (4)(a)).
The court finds no
error in the treatment of Dr. Reddy's assessment.
5.
Dr. Saint-Preux
Dr. Carl Saint-Preux opined that Alonso suffered from marked
limitations in concentration, persistence and pace.
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The ALJ,
however, gave Dr. Saint-Preux’s opinion no weight because it was
inconsistent with an assessment several months earlier in which
Dr. Saint-Preux found no work-related mental functional
limitations.
This is permissible.
See Couture v. Colvin, 2015
DNH 128, 7 (noting that an ALJ may permissibly discount even a
treating medical provider's opinion if it is internally
inconsistent).
6.
Once again, the court finds no error.
Dr. Balmaceda
The ALJ accorded little weight to the opinion of Dr. Casilda
Balmaceda, who limited Alonso to lifting or carrying less than 10
pounds and restricted her to sitting, standing, and walking two
hours each in an eight-hour workday.
The ALJ explained that Dr.
Balmaceda’s opinion, like that of Dr. Saint-Preux, was both
internally inconsistent (because she had also indicated that
Alonso could sit for five hours at a time), and inconsistent with
the doctor's other treatment records, which noted that Alonso had
a normal gait, coordination and strength.
Against this backdrop,
the ALJ's finding is supported by substantial evidence.
7.
Felix Ortega
In a Physical RFC questionnaire, Mr. Ortega, a physical
therapist, opined that Alonso could stand or walk for less than
two hours per day, would need a sit/stand option every hour and
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would miss about three days of work per month.
The ALJ gave this
opinion little weight because it was inconsistent with the record
as a whole.
Alonso complains that the ALJ did not sufficiently
address these purported inconsistencies.
However, in discussing
other medical sources (i.e. not acceptable sources), the ALJ need
only discuss “at least some of the reasons for the weight given.”
Scott v. Colvin, 2014 DNH 168, 6.
Given the ALJ's overall
discussion of the medical record in discussing the weight given
other medical providers, the court finds the ALJ's reasoning
sufficient with respect to Mr. Ortega.
8.
Credibility
Alonso essentially repeats her argument that the ALJ
improperly assessed her credibility in the RFC context.
Having
already rejected the argument, the court declines to address it
again.
C.
Medical Vocational Guidelines
Alonso argues that it was improper to for the ALJ to use the
Grids as a framework because her RFC was improperly determined.
The court having already determined that there was no error in
the RFC determination, this claim fails.
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D.
Development of the Record
Alonso's final point of contention is that the ALJ should
have done more to develop the record.
To the extent this
argument rehashes Alonso’s argument addressed, supra, concerning
her credibility and activities of daily living, it is again
rejected.
And to the extent that Alonso faults the ALJ for not
delving further into specific references in the medical records
to other treatments, the court again points out that Alonso was
represented by counsel, who did not indicate at the hearing that
further inquiry was necessary.
Moreover, Alonso again fails to
explain what such records would show.
The court finds no error
in the ALJ's development of the record.
IV.
Conclusion
The ALJ's findings are supported by substantial evidence.
Therefore, the Acting Commissioner's motion to affirm2 is GRANTED
and the plaintiff's motion to reverse3 is DENIED.
The clerk
shall enter judgment accordingly and close the case.
SO ORDERED.
Joseph N. Laplante
United States District Judge
2
Doc. no. 9.
3
Doc. no. 8.
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Dated: September 3, 2015
cc:
Raymond J. Kelly, Esq.
T. David Plourde, AUSA
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